The Right to Keep and Bear Arms under the
Second and Fourteenth Amendments
The Framers' Intent and Supreme Court Jurisprudence
by Stephen P. Halbrook
Stephen P. Halbrook is a practicing attorney in Fairfax, Virginia who
received his Ph.D. in philosophy from Florida State University in 1972, and his
J.D. From Georgetown University Law Center in 1978.
He is the author of That Every Man Be Armed: The Evolution of a
Constitutional Right (University of New Mexico Press 1984) and a Right
to Bear Arms: State and Federal Bills of Rights and Constitutional
Guarantees (Greenwood Press 1989). He has authored numerous law review
articles on the Second Amendment and a chapter in The Right to Keep and Bear
Arms, Report of the Subcommittee on the Constitution, Senate Committee on
the Judiciary (1982).
He was lead counsel in National Rifle Association v. Brady, 914 F.2d
475 (4th Cir. 1990); Fresno Rifle and Pistol Club, Inc. v Van de Kamp,
746 F.Supp. 1415 (E.D. Cal. 1990), notice of appeal filed March 11, 1991 (9th
Cir.); and Thompson/Center Arms Co. v. United States, 924 F.2d 1041
(Fed. Cir. 1991), cert. granted U.S. (Oct. 7, 1991).
The Second Amendment to the United States Constitution provides: "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
Fourteenth Amendment provides: "No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
The following analyzes the jurisprudence of the United States Supreme Court
on the Second and Fourteenth Amendments. In addition to case law, this paper
sets forth the intent of the framers of those respective amendments. It
concerns two fundamental issues: First, to what extent does the Second
Amendment, which provides protection from federal infringement, guarantee the
individual right to keep and bear arms? Second, does the Fourteenth Amendment
protect this right from state infringement?
I. The Individual Right to Keep and Bear Arms
Under the Second Amendment
United States v. Verdugo-Urquidez, 494 U.S. 259, 108 L.Ed.2d 222,
110 S.Ct. 1056 (1990) makes clear that the Second Amendment protects the rights
of all law-abiding persons. The Court stated:
"The people" seems to have been a term of art employed
in select parts of the Constitution.... The Second Amendment protects "the
right of the people to keep and bear Arms," and the Ninth and Tenth
Amendments provide that certain rights and powers are retained by and reserved
to "the people." See also U.S. Const., Amdt. 1,
("Congress shall make no law ... abridging ... the right of the
people peaceably to assemble"); Art. I, § 2, cl. 1 ("The
House of Representatives shall be composed of Members chosen every second year
by the People of the several States")(emphasis added). While this
textual exegesis is by no means conclusive, it suggests that "the
people" protected by the Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are reserved in the Ninth and Tenth
Amendments, refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection with this
country to be considered part of that community. 108 L.Ed.2d at 232-33
(emphasis added in part.)
Concurring, Justice Stevens added that "aliens who are lawfully
present in the United States are among those 'people' who are entitled to the
protection of the Bill of Rights .... " Id. at 241. In his dissent,
Justice Brennan noted that "the term 'the people' is better understood as
a rhetorical counterpoint 'to the government,' such that rights that were
reserved to 'the people' were to protect all those subject to 'the government'
... 'The people' are 'the governed."' Id. at 247.
The above decision reversed a split decision by the Ninth Circuit, 856 F.2d
1214 (9th Cir. 1988), thereby upholding the dissenting views of Circuit Judge
Wallace. Judge Wallace stated:
The fourth amendment extends its guarantees to "the
people," meaning "the people of the United States." Elsewhere in
the Bill of Rights, the Framers sought to constrain the reach of the federal
government in the name of "the people." Besides the fourth amendment,
the name of "the people" is specifically invoked in the first,
second, ninth, and tenth amendments. Presumably, "the people"
identified in each amendment is coextensive with "the people" cited
in the above amendments. No contrary indication appears in either the text
or history of the Constitution. Id. at 1239. (Emphasis added.)
Similarly, Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)
considered the meaning of "the people" and denied Bill of Rights
protection to enemy aliens because otherwise:
Such a construction would mean that during military occupation
irreconcilable enemy elements, guerrilla fighters, and "werewolves"
could require the American Judiciary to assure them freedoms of speech, press,
and assembly as in the First Amendment, right to bear arms as in the Second,
security against "unreasonable" searches and seizures as in the
Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.
As is clear, the rights to speech and bearing arms are assumed to be
guaranteed to the citizens. After quoting the First Amendment, the Court has
referred to "the equally unqualified command of the Second Amendment: 'the
right of the people to keep and bear arms shall not be infringed."'
Konigsberg v. State Bar of California, 366 U.S. 36, 49 n.10 (1961). As
stated by the Court:
This constitutional protection must not be interpreted in a
hostile or niggardly spirit ....
As no constitutional guarantee enjoys preference, so none should suffer
subordination or deletion. To view a particular provision of the Bill of Rights
with disfavor inevitably results in a constricted application of it. This is to
disrespect the Constitution.
In United States v. Miller, 307 U.S. 174 (1939), the Court avoided
determining whether a short barrel shotgun may be taxed under the National
Firearms Act consistent with the Second Amendment, as no evidence in the record
addressed whether such a shotgun was, or was not, an ordinary militia arm. The
Supreme Court remanded the case for fact-finding based on the following:
In the absence of any evidence tending to show that possession
or use of a "shotgun having a barrel of less than eighteen inches in
length" at this time has some reasonable relationship to the preservation
or efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument. Certainly
it is not within judicial notice that this weapon is any part of the
ordinary military equipment or that its use could contribute to the common
defense. Aymette v. State, 2 Hump. 154, 158. 307 U.S. at 178 (emphasis
The Miller court did not suggest that the possessor must be a member
of the militia or National Guard, asking only whether the arm could have
militia use. The individual character of the right protected by the Second
Amendment went unquestioned.
The Aymette opinion stated on the page cited above by the U.S.
Supreme Court: "the arms, the right to keep which is secured, are such as
are usually employed in civilized warfare, and that constitute the ordinary
military equipment. If the citizens have these arms in their hands, they are
prepared in the best possible manner to repel any encroachments on their
rights, etc." 2 Hump. (21 Tenn.) 154, 158 (1840).
Referring to the militia clause of the Constitution, the Supreme Court
stated that "to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made." 307 U.S. at 178. The Court then noted that "the
Militia comprised all males physically capable of acting in concert for the
common defense" and that "these men were expected to appear
bearing arms supplied by themselves and of the kind in common use at the
time." Id. at 179 (emphasis added).
The Miller court noted that most states "have adopted provisions
touching the right to keep and bear arms" but that differences in language
meant variations in "the scope of the right guaranteed." 307 U.S. at
182. State precedents cited by the court are divided mainly over whether the
respective state guarantees protect all arms or only militia-type
Miller also cites approvingly the commentaries of Joseph Story and
Thomas M. Cooley. 307 U.S. at 182 n.3. Justice Story stated: "The right of
the citizens to keep and bear arms has justly been considered, as the palladium
of the liberties of the republic; since it offers a strong moral check against
usurpation and arbitrary power of the rulers; and will generally, even if these
are successful in the first instance, enable the people to resist and triumph
over them." Judge Cooley stated:
Among the other safeguards to liberty should be mentioned the
right of the people to keep and bear arms .... The alternative to a standing
army is 'a well-regulated militia'; but this cannot exist unless the people are
trained to bearing arms.
Lewis v. United States, 445 U.S. 55 (1980) dealt with the federal
prohibition on possession of firearms by felons. The Court noted: "These
legislative restrictions [i.e., a felon may not receive a firearm in commerce]
on the use of firearms are neither based upon constitutionally suspect
criteria, nor do they trench upon any constitutionally protected
liberties." Id. at 65 n.8 (emphasis added.) Since "a
legislature constitutionally may prohibit a convicted felon from engaging in
activities far more fundamental than the possession of a firearm" —
including the exercise of other civil liberties, and may even deprive a felon
of life itself — felons have no fundamental right to keep and bear arms.
Id. at 66. Lewis explicitly reaffirmed the Miller rule, and
removed any uncertainty, that the Second Amendment protects possession of
"a firearm" with a militia nexus, and does not merely protect a
person with a militia nexus. Id. at 65 n.8. Lewis did not say
that the right to keep and bear arms is not a fundamental right of law-abiding
citizens. A "fundamental
right" includes a right "explicitly ... guaranteed by the
Constitution." San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 35 (1973).
Until recently, no law has ever been passed which banned possession of
ordinary firearms by law-abiding citizens. There is dictum about the Second
Amendment from cases concerning felons. E.g., United States v. Johnson,
497 F.2d 548, 550 (4th Cir. 1974)(court appointed attorney made preposterous
argument that Second Amendment protects felon's purchase of firearm;
unsupported dictum about "a collective right"). Other cases
presuppose an individual right. Only one
local ordinance banning handgun possession — with exemptions for
collectors and storage at clubs — has ever been the subject of a federal
appellate decision related to the Second Amendment. Quilici v. Villaqe of
Morton Grove, 695 F.2d 261 (7th Cir. 1982)(2-1 opinion), cert. denied 464
U.S. 863 (1983). Yet the majority in this case decided that the Second
Amendment does not apply to the states, and did not decide that the Second
Amendment does not recognize an individual right. Instead, the court noted the
Miller holding that "the right to keep and bear arms extends only
to those arms which are necessary to maintain a well regulated
In 1989, the State of California banned rifles with military model
designations, and declared an intent to allow firearms for sporting use only.
California Penal Code paragraph 12275.5, 12276. Such models as are
semiautomatic rifles pass the Miller test because they are appropriate
for militia use, even though the Armed Forces only use fully automatic
machineguns. The use of these rifles in
the federal Civilian Marksmanship Program demonstrates their suitability for
Tanks, rockets, and nuclear weapons are not protected by the Second
Amendment. The Second Amendment protects only arms which one may
"keep" and "bear." "The term 'arms' as used by the
drafters of the constitutions probably was intended to include those weapons
used by settlers for both personal and military defense... The term 'arms'
would not have included cannons nor other heavy ordnance not kept by militiamen
or private citizens." State v. Kessler, 289 Or. 359, 368, 614 P.2d
94, 98 (1980). Semiautomatic firearms
have been held as constitutionally guaranteed "arms" under state
provisions which were derived from the Second Amendment.
In the Firearms Owners' Protection Act of 1986, Congress interpreted the
Second Amendment as guaranteeing an individual right of persons to acquire and
keep rifles, pistols, and shotguns. It recognized "the rights of citizens
to keep and bear arms under the second amendment to the United States
Constitution" as a reason to
deregulate substantially the purchase, sale and ownership of
firearms. paragraph 1, P.L. 99-308, 100
Stat. 449 (1986). Relying on to its enforcement power under the Fourteenth
Amendment, Congress preempted state laws which disallowed transportation of
In sum, it is clear that Supreme Court jurisprudence is entirely consistent
with an individual rights interpretation of the Second Amendment.
II. The Intent of the Framers of the Second
The Supreme Court has held that "when we do have evidence that a
particular law would have offended the Framers, we have not hesitated to
invalidate it on that ground alone." Minneapolis Star v. Minnesota
Comm. of Rev., 460 U.S. 575, 583-84 n.6 (1983).
It is precisely because the framers wanted to promote a well regulated
militia composed of the populace at large that they insisted that the people
have a right to keep and bear arms. Concern for the militia does not logically
negate recognition of the people's right to keep and bear arms. Far from being
mutually exclusive, the militia and this right sustain each other.
Of the eight state bills of rights adopted before the federal Constitution,
four recognized the right of "the people" to bear arms. None of these
were contained in a militia clause, nor was the term "bear arms"
limited to war usage. For instance, the Pennsylvania Declaration of Rights,
Art. XIII (1776) provided: "That the people have a right to bear arms for
the defense of themselves, and the state... ."
In The Federalist No. 46, James
Madison alluded to "the advantage of being armed, which the Americans
possess over the people of almost every other nation." Madison, Hamilton,
and Jay, The Federalist Papers 299 (Arlington House ed. n.d.) Madison
continued, "Notwithstanding 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." Id.
Noah Webster, the influential federalist whose name still appears on
dictionaries, stated: "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... ." Pamphlets on the Constitution of the United
States 56 (P. Ford ed. 1888).
Insisting on a Bill of Rights, Richard Henry Lee wrote 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 ...
" R. Lee, Additional Letters from The Federal Farmer 170 (1788).
The Supreme Court has noted: "The remarks of Richard Henry Lee are typical
of the rejoinders of the Antifederalists... . The concerns voiced by the
Antifederalists led to the adoption of the Bill of Rights... ."
Minneapolis Star v. Minnesota Corn. of Rev., 460 U.S. 575, 584 (1983).
In the Virginia ratifying convention, Patrick Henry argued, "the great
object is, that every man be armed... . Everyone who is able may have a
gun." 3 Elliot, Debates in the Several State
Conventions 386 (1836). Accordingly, the Virginia convention proposed a
declaration of individual rights, including: "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... ." Id. at 659.
Virginia also proposed an entirely separate body of amendments concerning
governmental powers, including: "That each state respectively shall have
the power to provide for organizing, arming, and discipline its own militia,
whensoever Congress shall omit or neglect to provide for the same."
Id. at 660.
When James Madison proposed the Bill of Rights in 1789, he wrote that the
proposed amendments concerning the press and arms "relate first to private
rights." 12 Madison Papers 193-194 (Rutland ed. 1979). Ten days
after its introduction, federalist leader Tench Coxe wrote of what became the
Second Amendment: "As civil rulers, not having their duty to the people
duly before them, may attempt to tyrannize, and as the military forces which
must be occasionally raised to defend our country, might pervert their power to
the injury of their fellow-citizens, the people are confirmed by the next
article in their right to keep and bear their private arms." Federal
Gazette, June 18, 1789, at 2, col. 1 (emphasis added). Madison endorsed
Coxe's analysis, which was reprinted without contradiction. See 12 Madison
Papers at 239-40, 257 (1979).
When the constitutional amendments were being debated in Congress, the
state-militia guarantee proposed by the Virginia convention was rejected.
Journal of the First Session of the Senate 75 (1820). Thus, Congress
passed the Bill of Rights, which guaranteed "the right of the people to
keep and bear arms," and rejected an explicit "power" of
"each state" to provide for militias. No court has ever acknowledged
awareness of this fact. Through an Orwellian rewriting of history, adherents of
an exclusive state militia power appear to claim that the defeated amendment is
really what passed in the Second Amendment.
The Framers assigned promotion of a well regulated militia as the leading
purpose of what is nonetheless the "right of the people to keep and bear
arms." One would not expect the Framers to state in a serious political
charter a preamble such as "duck hunting being necessary to the recreation
of a fun state."
St. George Tucker, the first major commentator on the Bill of Rights
(New York Times v. Sullivan, 376 U.S. 254, 296-97 (1964)), explained the
Second Amendment as follows: "The right of self defense is the first law
of nature .... Wherever ... the right of the people to keep and bear arms is,
under any color or pretext whatsoever, prohibited, liberty, if not already
annihilated, is on the brink of destruction." 1 Tucker, Blackstone's Commentaries (Appendix) 300
In sum, the Framers clearly intended to protect the individual right to keep
and bear arms.
III. Does the Fourteenth Amendment
Incorporate the Second Amendment?
The only mention by the United States Supreme Court of the right to keep and
bear arms before the Fourteenth Amendment was passed found the right to be
protected from any infringement, including the state slave codes. In the
Dred Scott decision, Chief Justice Taney wrote that citizenship
"would give to persons of the negro race ... the full liberty of speech
... and [the right] to keep and carry arms wherever they went." Scott
v. Sandford, 60 U.S. 393, 417 (1857). In other words, if blacks were
citizens, then the Second Amendment would invalidate state laws which
prohibited firearms possession by such citizens.
The Fourteenth Amendment was intended to eradicate the black codes, under
which "Negroes were not allowed to bear arms or to appear in all public
places... " Bell v. Maryland, 378 U.S. 226, 247-48 & n.3 (1964)
(Douglas, J., concurring). In his concurring opinion in Duncan v.
Louisiana, 391 U.S. 145, 166-67 (1968), Justice Black recalled the
following words of Senator Jacob M. Howard in introducing the amendment to the
Senate in 1866: "The personal rights guaranteed and secured by the first
eight amendments of the Constitution; such as ... the right to keep and bear
arms .... The great object of the first section of this amendment is,
therefore, to restrain the power of the States and compel them at all times to
respect these great fundamental guarantees."
The Supreme Court has never determined whether the Fourteenth Amendment
protects the right to keep and bear arms from state infringement. However,
Malloy v. Hogan, 378 U.S. 1, 5 (1964) states: "The Court has not
hesitated to re-examine past decisions according the Fourteenth Amendment a
less central role in the preservation of basic liberties than that which was
contemplated by its Framers when they added the Amendment to our constitutional
The same two-thirds of Congress which proposed the Fourteenth Amendment also
passed an enactment declaring that the fundamental rights of "personal
liberty" and "personal security" include "the
constitutional right to bear arms." Freedmen's Bureau Act, paragraph 14,
14 Stat. 176 (July 16, 1866). This Act, and the companion Civil Rights Act of
1866, sought to guarantee the same rights that the Fourteenth Amendment was
adopted to protect.
No court has ever considered Congress' declaration, contemporaneously with
its adoption of the Fourteenth Amendment, that the rights to personal security
and personal liberty include the "constitutional right" — i.e.,
the right based on the Second Amendment — "to bear arms." Until
now, this declaration in the Freedmen's Bureau Act has been completely unknown
both to scholars and the courts.
At the beginning of the above session, Senator Sumner presented "a
memorial from the colored citizens of the State of South Carolina in convention
assembled .... They ask also that they should have the constitutional
protection in keeping arms ..." Cong. Globe, 39th Cong., 1st Sess.,
337 (Jan. 22, 1866). The Second Amendment was explained as protecting the right
"for every man bearing his arms about him and keeping them in his house,
his castle, for his own defense." Id. at 371 (Jan. 23, 1866)
(remarks of Senator Davis).
The Freedmen's Bureau bill would have protected the right of every person
"to have full and equal benefit of all laws and proceedings for the
security of person and estate, including the constitutional right to bear
arms." Id. at 654, 1292. The first bill, including this exact
language, passed Congress, but was vetoed by President Johnson.
Jones v. Mayer Co., 392 U.S. 409, 423-24, 436 (1968) notes the
intimate connection between the above and the adoption of the Fourteenth
Amendment. See Bell v. Maryland, 378 U.S. 226, 292-93 (1964) (Goldberg,
J., concurring) (tracing Fourteenth Amendment to Civil Rights Act and
Freedmen's Bureau bill, and quoting the latter's reference to "full and
equal benefit of all laws and proceedings for the security of person and
When reintroduced after the President's veto, and as passed, the Freedmen's
Bureau Act protected the "full and equal benefit of all laws and
proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and personal,
including the constitutional right to bear arms". Cong.
Globe, 39th Cong., 1st Sess., 3412; 14 Stat. 176 (emphasis added).
Each and every member of Congress who voted for the Fourteenth Amendment
also voted for one or both of the two Freedmen's Bureau bills which recognized
the right to bear arms.
Every single senator who voted for the Fourteenth Amendment also voted for
the recognition of the constitutional right to bear arms in the Freedmen's
Bureau bills, S. 60 and H.R. 613. An analysis of the roll call votes reveals
that all 33 senators, i.e., 100%, who voted for the Fourteenth Amendment also
voted for either S. 60 or H.R. 613. Of
the 33 who voted for the Fourteenth Amendment, 28 (85%) voted for both S. 60
and H.R. 613. The Senate's override of the Presidential veto passed by 33 to 12
(73%), more than the necessary two-thirds.
Members of the House cast recorded votes overwhelmingly in favor of the
Freedmen's Bureau bills, with recognition of the right to bear arms, on three
occasions, and in favor of the Fourteenth Amendment on two occasions. The overwhelming majority voted in the
affirmative on all five recorded votes — once on S. 60, twice on the
Fourteenth Amendment, and twice on H.R. 613. A total of 140 Congressmen voted
at least once in favor of the Fourteenth Amendment, and of these 140 —
i.e., 100% — voted at least once in favor of one of the Freedmen's Bureau
bills. Of the 140 Congressman who voted for the Fourteenth Amendment, a total
of 120 — i.e., 86% — voted for both S. 60 and H.R. 613. The House
overrode the President's veto of H.R. 613 by a vote of 104-33, i.e., 76%.
Accordingly, to a man, more than two-thirds of members of Congress who
voted for the Fourteenth Amendment also voted for the proposition in the
Freedmen's Bureau bills that the constitutional right to bear arms is included
in the rights of personal liberty and personal security.
The Supreme Court has repeatedly found the Fourteenth Amendment to protect
from state action the "indefeasible right of personal security, personal
liberty and private property ... ." Griswold v. Connecticut, 381
U.S. 479, 485 n. (1965). "Constitutional provisions for the security of
person and property should be liberally construed." Coolidge v. New
Hampshire, 403 U.S. 443, 454 (1971).
The Freedmen's Bureau Act recognized the right to bear arms as a right of
every person, not as a state militia power. Indeed, the Act and the Fourteenth
Amendment — as well as an act abolishing the Southern state militias
— were passed in part to prevent state militias from disarming individuals
and hence infringing on the right to keep and bear arms.
Justice Marshall's opinion in Regents of the Univ. of California v.
Bakke, 438 U.S. 265, 397 (1978) states: "The Congress that passed the
Fourteenth Amendment is the same Congress that passed the 1866 Freedmen's
Bureau Act." Justice Marshall concluded that the rights set forth in the
Freedmen's Bureau Act were dispositive of Congress' intent in the Fourteenth
Amendment. Id. at 398.
Thus, over two-thirds of the Congress that passed the Fourteenth Amendment
went on record recognizing that "the constitutional right to bear
arms" was among the guarantees of personal liberty and personal security
to be protected from state infringement. No other provision of the Bill of
Rights was singled out for this preferred treatment.
A lengthy analysis of the Civil Rights Act of 1871, 42 U.S.C. paragraph
1983, in Monell v. Dept. of Social Services of City of New York, 436
U.S. 658, 665 (1978) relies on a speech by Representative John Bingham as
follows: "Representative Bingham, for example, in discussing paragraph 1
of the bill, explained that he had drafted paragraph 1 of the Fourteenth
Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243
(1833), especially in mind." 436 U.S. at 686-87. On the same page of the
speech where he mentioned Barron, Bingham characterized "the right
of the people to keep and bear arms" as one of the "limitations upon
the power of the States ... made so by the Fourteenth Amendment." Cong.
Globe, 42nd Cong., 1st Sess., pt. 2, Appendix 84 (Mar. 31, 1871). As the
Court pointed out, "Representative Bingham, the author of paragraph 1 of
the Fourteenth Amendment, ... declared the bill's purpose to be 'the
enforcement ... of the Constitution on behalf of every individual citizen of
the Republic ... to the extent of the rights guaranteed to him by the
Constitution."' 436 U.S. at 685 n. 45.
Another authority cited in Monell (id.) was Representative
Henry L. Dawes, who stated on the pages referenced by the Court that the
Fourteenth Amendment "has secured to [the citizen] the right to keep and
bear arms in his defense." Cong. Globe, 42nd Cong., 1st Sess., pt.
1, 475-76 (Apr. 5, 1871).
Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) points out
that, in passing the Civil Rights Act, Congress assigned to the federal courts
a paramount role in protecting constitutional rights. Representative Dawes
expressed this view as follows:
"The first remedy proposed by this bill is a resort to the
courts of the United States .... If there be power to call into courts of the
United States an offender against these rights, privileges, and
immunities, and hold him to an account there, either civilly or
criminally, for their infringement, ... there is no tribunal so fitted ...
as that great tribunal of the Constitution." Id. at 503. (citing
Cong. Globe, 42d Cong., 1st Sess. 476 (1871)) (emphasis added.)
"These rights, privileges, and immunities," which the Supreme
Court noted are "constitutional rights" that the federal courts are
bound to protect, were identified in detail by Representative Dawes just before
he uttered the words quoted above by the Court. Dawes stated in part:
The rights, privileges, and immunities of the American citizen,
secured to him under the Constitution of the United States, are the subject
matter of this bill ....
... Then again he has secured to him the right to keep and bear arms in his
It is all these, Mr. Speaker, which are comprehended in the words,
"American citizen," and it is to protect and to secure him in these
rights, privileges and immunities this bill is before the House. Cong.
Globe at 475-76.
After quoting Dawes, the Supreme Court references the remarks of
Representatives Butler and Coburn. 457 U.S. at 504. On the pages referred to by
the Court, Butler argued for protection of "rights, immunities, and
privileges" guaranteed in the Constitution. Cong. Globe at 448-49.
In a report introducing the civil rights bill just weeks before, Butler
advocated protection for "the well-known constitutional provision
guaranteeing the right in the citizen to 'keep and bear arms' .... " H.R.
Rep. No. 37, 41st Cong., 3d Sess. 3 (Feb. 20, 1871). The page reference to
Coburn finds him supporting the bill to prevent the following state
infringement: "How much more oppressive is the passage of a law that they
shall not bear arms than the practical seizure of all arms from the hands of
the colored men?" Cong. Globe, 42d Cong., 1st Sess. 459 (1871).
(The Court relies on this page of Coburn's speech as authority four times. 457
U.S. at 504-06.)
The Supreme Court continued: "Opponents of the bill also recognized
this purpose and complained that the bill would usurp the State's power. See,
e.g., ... remarks of Representative Whitthorne ... , Id. at 504 n.6. On
the page cited by the Court, Whitthorne noted that the proposed Civil Rights
Act, today's paragraph 1983, would allow suits by any person "who
conceives that he has been deprived" by state action "of any right,
privilege, or immunity secured to him by "the Constitution of the United
States." Whitthorne added that if a police officer seized a pistol from a
"drunken negro," "the officer may be sued, because the right to
bear arms is secured by the Constitution ...." Cong. Globe, 42d
Cong., 1st Sess. 337 (1871).
The Supreme Court cites Senator Thurman four times as a representative
opponent of the civil rights bill. 457 U.S. at 504 n.6, 505 n.7, 506 & n.9.
The Court depicts such opponents as correctly recognizing the bill's broad
scope. Id. at 504 n.6. Senator Thurman included the Second Amendment
among the "rights privileges, and immunities of a citizen of the United
States." "Here is another right of a citizen of the United States,
expressly declared to be his right — the right to bear arms; and this
right, says the Constitution, shall not be infringed." Cong. Globe,
42d Cong., 2d Sess., App. 25-26 (1872). Senator Sherman — whom Patsy
relied upon as a proponent of the bill (457 U.S. at 505 n.8) — agreed with
Thurman's assessment as far as it went. Cong. Globe, 42d Cong., 2d
Sess., App. 25-26 (1872).
The Patsy Court did not ignore Representative Bingham, the draftsman
of the Fourteenth Amendment, and approvingly cites the same page of his
well-known speech: "that the scope and meaning of the limitations imposed
by the first section, fourteenth amendment of the Constitution may be more
fully understood, permit me to say that the privileges and immunities of
citizens of a State, are chiefly defined in the first eight amendments to the
Constitution of the United States." Bingham proceeded to read each of
those amendments, including the Second Amendment. Id., 1st Sess., App.,
85 (1871). (This page is cited as authority in 457 U.S. at 507.)
The Court has never held that the Second Amendment does not apply to the
states through the Fourteenth Amendment. The Court confirmed that it had never addressed
this issue in Miller v. Texas, 153 U.S. 535 (1894), which remains the
last word on the subject from the Court.
Miller attacked a state statute on the bearing of pistols as
violative of the Second, Fourth, and Fourteenth Amendments. However, he
asserted these arguments for the first time in a motion for rehearing after his
conviction had been affirmed by a state appellate court.
The Court stated (id. at 538) that the Second and Fourth Amendments
did not directly apply to the states, citing the pre-Fourteenth case of
Barron v. Baltimore, 32 U.S. 243, 250-51 (1833) (Fifth Amendment
just-compensation clause does not restrict state action) and United States
v. Cruikshank, 92 U.S. 542, 552-53 (1876)("the first amendment . was
not intended to limit the powers of the State governments ... but to operate
upon the National government alone"; same with Second Amendment).
Cruikshank was also cited in Presser v. Illinois, 116 U.S. 252
(1886). Presser held that a prohibition on unlicensed armed marches
"do[es] not infringe the right of the people to keep and bear arms,"
adding that the First Amendment right to assemble and the Second Amendment
right to bear arms do not, in and of themselves, limit state action. 116 U.S.
at 265, 267. Presser did not address whether the Fourteenth Amendment
incorporates the First and Second Amendments so as to limit state action
concerning the rights there declared.
The Court in Miller v. Texas then turned to the claim that the Texas
statute violated the rights to bear arms and against warrantless searches as
incorporated in the Fourteenth Amendment.
The Court would not hear objections not made in a timely fashion:
And if the Fourteenth Amendment limited the power of the States
as to such rights, as pertaining to citizens of the United States, we think it
was fatal to this claim that it was not set up in the trial court .... A
privilege or immunity under the Constitution of the United States cannot be set
up here ... . when suggested for the first time in a petition for rehearing
after judgment. Id. at 538-39.
Rather than reject incorporation of the Second and Fourth Amendments into
the Fourteenth, the Supreme Court merely refused to decide the defendant's
claim because its powers of adjudication were limited to the review of errors
timely assigned in the trial court. The Court merely left open the possibility
that the right to keep and bear arms and freedom from warrantless searches
would apply to the states through the Fourteenth Amendment.
While the above was the last word by the Supreme Court on the issue,
Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) stated:
The law is perfectly well settled that the first ten Amendments
to the constitution, commonly known as the Bill of Rights, were not intended to
lay down any novel principles of government, but simply to embody certain
guaranties and immunities which we had inherited from our English ancestors...
. In incorporating these principles into the fundamental law there was no
intention of disregarding the exceptions ... . Thus, ... the right of the
people to keep and bear arms (article 2) is not infringed by laws prohibiting
the carrying of concealed weapons ....
Thus, the states may regulate certain aspects of the exercise of the right
to keep and bear arms, but may not prohibit its exercise altogether.
Supreme Court jurisprudence coupled with the intent of the Framers makes
clear that the Second Amendment guarantees the right of law-abiding individuals
to keep and bear arms. The Fourteenth Amendment incorporates the Second
Amendment so as to protect this right from state infringement. As Americans
celebrate the Bicentennial of the Bill of Rights, it is evident that the Second
Amendment is not an embarrassing relic to hide in the closet, but is as
essential to human freedom as is any other fundamental right.
1. Ullmann v. United States, 350 U.S. 422,
2. Among the cases cited by the Supreme
Court are the following:
"The arms which it guarantees American
citizens the right to keep and to bear, are such as are needful to, and
ordinarily used by a well regulated militia, and such as are necessary and
suitable to a free people, to enable them to resist oppression, prevent
usurpation, repel invasion, etc., etc." Fife v. State, 31 Ark. 455, 458,
25 Am. Rep. 556 (1876).
"Some courts have ... held that
the constitutional protection covers the bearing of such arms only as are a
customary part of the equipment of a militiaman .... On the other hand, some
courts ... have extended the protection to weapons of all descriptions."
People v. Brown, 253 Mich. 537, 235 N.W. 245, 246 (1931).
"The arms which every person is
secured the right to keep and bear (in the defense of himself or the State,
subject to legislative regulation), must be such arms as are commonly kept,
according to the customs of the people, and are appropriate for open and manly
use in self-defense, as well as such as are proper for the defense of the
State." State v. Duke, 42 Tex. 455, 458-59 (1875).
"In regard to the kind of arms
referred to in the [second] amendment, it must be held to refer to the weapons
of warfare to be used by the militia, such as swords, guns, rifles, and
muskets,-arms to be used in defending the state and civil liberty ... ."
State v. Workman, 35 W.Va. 367, 373, 14 S.E. 9, 11 (1891).
Thus, it has been generally assumed that militia-type
firearms are constitutionally protected; past controversies centered on other
types of weapons. While not cited by the Supreme Court, the following cases
make this point:
"[T]he term 'arms' as used means such arms
as are recognized in civilized warfare .... " State v. Swanton, 129 Ariz.
131, 629 P.2d 98, 99 (Ct. App. 1981).
"The intention was to embrace
the 'arms', an acquaintance with whose use was necessary for their protection
against the usurpation of illegal power — such as rifles, muskets,
shotguns, swords, and pistols." State v. Kerner, 181 N.C. 574, 107 S.E.
222, 224-25 (1921).
"Under this head, with a
knowledge of the habits of our people, and of the arms in the use of which a
soldier should be trained, we would hold that the rifle of all descriptions,
the shot-gun, the musket and repeater are such arms; and that under the
constitution the right to keep such arms cannot be infringed or forbidden by
the legislature." Andrews v. State, 50 Tenn. 165, 179, 8 Am. Rep. 8, 14
(1871). Id. at 183 n.3.
3. J. Story, Commentaries on the
Constitution 646 (5th ed. 1891). "One of the ordinary modes, by which
tyrants accomplish their purpose without resistance is, by disarming the
people, and making it an offense to keep arms ... ." J. Story, A
Familiar Exposition of the Constitution of the United States 264
4. T. Cooley, Constitutional
Limitations 729. T. Cooley, General Principles of Constitutional Law
281-282 (2d ed. 1891) states further:
The right is General — It may be supposed
from the phraseology of this provision that the right to keep and bear arms was
only guaranteed to the militia; but this would be an interpretation not
warranted by the intent .... The meaning of the provision undoubtedly is that
the people from whom the militia must be taken shall have the right to keep and
bear arms, and they need no permission or regulation of law for the
5. See United States v. Three Winchester
30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n.5 (7th Cir. 1974),
an opinion by Judge Sprecher, author of The Lost Amendment, 51 A.B.A.J. 554,
665 (1965), which argues the individual rights position. In his above opinion,
Sprecher cited United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971),
which found "no conflict between [the prohibition] and the Second
Amendment since there is no showing that prohibiting possession of firearms by
felons obstructs the maintenance of a well regulated militia."
6. Felons are "a separate class whose
individual right to bear arms may be prohibited." United States v. Wiley,
309 F.Supp. 141, 145 (D. Minn. 1970), aff'd 438 F.2d 773 (8th Cir. 1971). See
United States v. Bowdach, 414 F.Supp. 1346, 1353 & n.11 (S.D. Fla. 1976),
aff'd 561 F.2d 1160 (5th Cir. 1977) ("possession of the shotgun by a
non-felon has no legal consequences. U.S. Const. Amend. II.").
7. 695 F.2d at 270. While factually
incorrect, the court noted that "we do not consider individually owned
handguns to be military weapons." Id. at 270 n.8.
8. The rifle is the militia arm par
excellence. The language of the Second Amendment resulted in "the
deference and immunity extended to rifles in the earliest enactments ....
" People v. Raso, 9 Misc.2d 739, 170 N.Y.S.2d 245, 248-49 (1958). People
v. Warden, 154 App. Div. 413, 139 N.Y.S. 277, 284 (1913) states: "If the
Legislature had prohibited the keeping of arms, it would have been clearly
beyond its power."
9. Construing the Second Amendment and a
state guarantee, State v. Kerner, 181 N.C. 574, 577-78, 107 S.E. 222, 224-25
(1921) noted that the term "should be construed to include all 'arms' as
were in common use, and borne by the people ... such as rifles, muskets,
shotguns, swords, and pistols." "It does not guarantee ... that the
people have the futile right to use submarines and cannons .... "
10. In State v. Rupe, 101 Wash.2d 664, 683
P.2d 571, 594 (1984), the court was concerned with the right to keep various
firearms, including "a CAR 15 semiautomatic rifle (civilian version of the
military's M-16)," and stated: "Constitutionally protected behavior
cannot be the basis of criminal punishment." Rinzler v. Carson, 262 So.2d
661, 666 (Fla. 1972) refers to "the historic constitutional right of the
people to keep and bear arms," as including "weapons not concealed
upon the person, which, although designed to shoot more than one shot
semi-automatically, are commonly kept and used by law-abiding people for
hunting purposes or for the protection of their persons and property, such as
semiautomatic shotguns, semiautomatic pistols and rifles."
11. The Congressional finding that the
Second Amendment guarantees "the rights of citizens" to keep and bear
arms was supported by The Right to Keep and Bear Arms: Report of the
Subcommittee on the Constitution, Senate Judiciary Committee, 97th Cong.,
2d Sess. 12 (1982), which states: "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 commentator
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." In "The Fourteenth Amendment and the
Right to Keep and Bear Arms: The Intent of the Framers," the Report
(id. at 68-82) demonstrates that the Second Amendment was intended to be
incorporated into the Fourteenth Amendment so as to limit state action.
12. The above Congressional findings
concerning the Second Amendment in the Firearms Owners' Protection Act are
referred to in United States v. Breier, 827 F.2d 1366 (9th Cir. 1987) (Noonan,
J., dissenting from denial of rehearing) as follows: Guns are the subject of
constitutional protection: "the right of the people to keep and bear arms
shall not be infringed." United States Constitution, Amendment II.
Congress has regulated guns, sensitive to the Second Amendment and to the
difference between hobbyists and those making a living out of the gun
13. 18 U.S.C paragraph 926A. Senator Symms
introduced this provision with the explanation: "The intent of this
amendment ... is to protect the second amendment rights of law-abiding citizens
wishing to transport firearms through States which otherwise prohibit the
possession of such weapons." 131 Cong. Rec. §9114 (July 9,
14. The only appellate case ever to uphold
a general prohibition on possession of handguns squarely conflicts with
Malloy's instruction. Quilici v. Village of Morton Grove, 695 F.2d 261, 270 n.8
(7th Cir. 1982) (2-1 opinion), cert. denied 464 U.S. 863 (1983) ("the
debate surrounding the adoption of the second and fourteenth amendments ... .
has no relevance on the resolution of the controversy before us.").
15. This author was unaware of this
declaration in the Freedmen's Bureau Act when he published That Every Man Be
Armed: The Evolution of a Constitutional Right (University of New Mexico
Press 1984), which analyzes the Congressional intent to incorporate the Second
Amendment into the Fourteenth Amendment. Id. at 107153. The most
definitive work on the incorporation of the Bill of Rights into the Fourteenth
Amendment does not reflect passage of the Freedmen's Bureau Act, although it is
cognizant of the bill itself:
The most telling evidence that the "full
and equal benefit of all laws and proceedings for the security of person and
property" could be read to include constitutional rights in the Bill of
Rights comes from Republicans in the Thirty-ninth Congress themselves. When
they passed the Freedman's Bureau bill, they provided that Blacks should have,
among other things, "full and equal benefit of all laws and proceedings
for the security or person and estate, including the constitutional right of
M. Curtis, No State Shall
Abridge: The Fourteenth Amendment and the Bill of Rights 72 (Duke
University Press 1986). Similarly, several Supreme Court cases analyze other
parts of the Freedmen's Bureau bill and appear unaware that it was enacted into
law. E.g., Loving v. Virginia, 388 U.S. 1, 9 (1967); Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 423 n.30 (1968).
16. All voting tabulations are made from
Cong. Globe, 39th
17. Id. at 3842.
18. Id. at 654 (Feb. 5, 1866), 688
(Feb. 6, 1866), 2545 (May 10, 1866), 3149 (June 13, 1866), 2878 (May 29, 1866),
and 3850 (July 16, 1866).
19. Coolidge, id. at 454 n.4, quotes
Gouled v. United States, 255 U.S. 298, 303-304 (1921) concerning rights
"declared to be indispensable to the 'full enjoymentof personal security,
personal liberty and private property'; that they are to be regarded as of the
very essence of constitutional liberty; and that the guaranty of them is as
important and as imperative as are the guaranties of the other fundamental
rights of the individual citizen ... ." See also id. at 588, 591
n.8, and 596; United States v. Verdugo-Urquidez, 856 F.2d 1214, 1220 (9th Cir.
1988), rev'd on other grounds 494 U.S. 259 (1990) ("The absolute rights of
individuals may be resolved into the right of personal security, the right of
personal liberty, and the right to acquire and enjoy property.") (quoting
2 J. Kent, Commentaries 1 (1827)).
It is well established that the right to personal liberty
and personal security — which the Congress that passed the Fourteenth
Amendment said includes "the constitutional right to bear arms"
— are protected by the Fourteenth Amendment. Wood v. Ostrander, 879 F.2d
583, 591 (9th Cir. 1989) squarely holds that no state may commit "a
violation of her constitutional right to personal security, a liberty interest
protected by the fourteenth amendment."
20. For instance, Senator Henry Wilson
introduced a bill to disband the Southern state militias because they abused
freedmen and "were engaged in disarming the negroes." Cong.
Globe, 39th Cong., 1st Sess., 914 (Feb. 19, 1866). Because of such
complaints, Congress disbanded the Southern state militias. 15 Stat. 487 (Mar.
21. United States v. Cruikshank, 92 U.S.
542 (1876) stated that the federally recognized rights of peaceable assembly
and bearing arms did not of themselves limit state action. This was dictum,
since the case involved the disarming and murder of freedmen by KKK members.
Id. at 551, 553; 25 F.Cas. 707 (C.C.D. La. 1874). The Court recognized
that the rights to assemble and to bear arms were not "granted" by
the Constitution because they existed long before its adoption. 92 U.S. at 551,
553. Presser v. Illinois, 116 U.S. 252 (1886) repeated that the First and
Second Amendments did not of themselves apply to the states. This too was
dictum, since the Court held that bans on unlicensed armed parades on city
streets "do not infringe on the right of the people to keep and bear
arms." Id. at 265. Presser does not discuss whether the Fourteenth
Amendment incorporates the Second Amendment.
22. Presser rejected the argument that a
person has, under the privileges and immunities clause of the Fourteenth
Amendment, a right "to associate with others as a military company, and to
drill and parade with arms in the towns and cities of the State".
Id. at 266. The Court also rejected without discussion a due process
argument under the Fourteenth Amendment. Id. at 268. Presser discussed
the Second Amendment issue separately from any Fourteenth Amendment issues, and
did not discuss incorporation.
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