The Journal on Firearms and Public Policy will provide a forum for publication of scholarly articles on firearms and their relation to social, legal, and political issues. We will accept papers in a broad range of scholarly areas related to gun ownership, use, carrying, law, and policy issues.

The Journal will reprint important past articles in order to provide a unified reference source for researching firearms issues. Over time we will reprint a data base designed to aid researchers to "read in" to the firearms controversy.

The primary purposes of the journal are; to encourage serious researchers to explore issues related to firearms and their effect on society, by providing a convenient place for the publication of research results and to provide an information source which can be used by policy makers to guide their decisions.

The Second Amendment Foundation sponsors this journal to encourage objective research. It is our intention to reprint articles of scholarly quality regardless of their conclusions for or against the Foundation's positions on controversial issues. We invite submission of research papers from a variety of disciplines.

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Alabama:

That every citizen has a right to bear arms in defense of himself and the state.

Ala. Constitution Article I, Section 26.

Alaska:

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.

Alaska Constitution Article I, Section 19

Arizona:

The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

Arizona Constitution Article 2, Section 26.

Arkansas:

The citizens of this State shall have the right to keep and bear arms for their common defense.

Ark. Constitution Article II, Section 5

Colorado:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Colo. Constitution Article II, Section 13

Connecticut:

Every citizen has a right to bear arms in defense of himself and the state.

Conn. Constitution Article I. Section 15

Delaware:

A person has the right to keep and bear arms for the defense of self, family, home, and State, and for hunting and recreational use.

Delaware Constitution Article I, Section 20.

Florida:

The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the stat shall not be infringed, except that the manner of bearing arms may be regulated by law.

Fla. Constitution Article I, Section 8.

Georgia:

The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

Georgia Constitution Article I, Section 1.

Hawaii:

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.

Hawaii Constitution Article I, Section 15.

Idaho:

The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, no prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

Idaho Constitution Article I, Section 11

Illinois:

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Ill. Constitution Article I, Section 22

Indiana:

The people shall have a right to bear arms, for the defense of themselves and the State.

Ind. Constitution Article I, Section 32

Kansas:

The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

Kan. Constitution, Bill of Rights, 4.

Kentucky:

All men are, by nature, free and equal, and have certain inherent inalienable rights, among which may be reckoned: ... The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Ky. Constitution 1.

Louisiana:

The right of each citizen to keep and bear arms shall not be abridged but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

La. Constitution Article I, Section 4.

Maine:

Every citizen has the right to keep and bear arms for the common defense; and this right shall never be questioned.

Me. Constitution Article 1, Section 16

Massachusetts:

The people have a right to keep and bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Mass. Constitution pt. 1, Article 17.

Michigan:

Every person has a right to keep and bear arms for the defense of himself and the state.

Mich. Constitution Article I, Section 6.

Mississippi:

The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.

Miss. Constitution Article III, Section 12.

Missouri:

That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

Mo. Constitution Article I, Section 23.

Montana:

The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing contained shall be held to permit the carrying of concealed weapons.

Mont. Constitution Article II, Section 12

Nevada:

Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.

Nevada Constitution Article 1, Section II, par. 1.

All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state.

New Hampshire Constitution Part First, Article 2-a.

New Mexico:

No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

N.M. Constitution Article II, Section 6.

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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

N.C. Constitution Article I, Section 30.

All individuals are by nature equally free and independent and have certain inalienable rights, among which are ... to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.

North Dakota Constitution Art. I, Section 1

Ohio

The people have the right to bear arms for their defense and security; but standing armies, in time of peace are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Ohio Constitution Article I, Section 4.

Oklahoma:

The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.

Okla. Constitution Article II, Section 26.

Oregon:

The people shall have the right to bear arms for the defense of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.

Oregon Constitution Article I, Section 27.

Pennsylvania:

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

Pa. Constitution Article I, Section 21.

Rhode Island:

The right of the people to keep and bear arms shall not be infringed.

R.I. Constitution Article I, Section 22.

South Carolina:

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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law.

S.C. Constitution Article I, Section 20.

The right of the citizens to bear arms in defense of themselves and the state shall not be denied.

S.D. Constitution Article VI, Section 24

Tennessee:

That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crimes.

Tenn. Constitution Article I, Section 26.

Texas:

Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

Tex. Constitution Article I, Section 23.

Utah:

The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.

Utah Constitution Article I, Section 6.

Vermont:

That the people have a right to bear arms for the defence of themselves and the State - and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

Vt. Constitution ch. 1, Article 16.

Virginia:

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, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination, to, and governed by, the civil power.

Va. Constitution Article I, Section 13.

Washington:

The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

Wash. Constitution Article I, Section 24.

A person has the right to keep and bear arms for the defense of self, family, home, and state, and for lawful hunting and recreational use.

West Virginia Constitution Article III, Section 22.

Wyoming:

The right of the citizens to bear arms in defense of themselves and of the state shall not be denied.

Wyo. Constitution Article I, Section 24.

Eight states do not have (as of June 1, 1988) constitutional provisions on the right to keep and bear arms. They are California, Iowa, Maryland, Minnesota, Nebraska, New Jersey, New York, and Wisconsin.

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¦ Reprinted by permission of: ¦ ¦ Detroit College of Law Review ¦ ¦ Volume 1982, Winter, Issue 4. ¦ ¦ Revised and updated by the author. ¦ +-------------------------------------------+

During 1981, courts in both Oregon and Indiana re-asserted their 1980 holdings that their respective state constitutional provisions for a right of the people to bear arms guaranteed an individual right to the private citizen. More specifically, the Oregon Supreme Court in State v. Blocker₁ re-asserted its 1980 holding in State v. Kessler₂ invalidating an Oregon state statute banning the private possession of certain arms, such as billy clubs. The Indiana Court of Appeals in Shettle v. Shearer₃ reaffirmed its 1980 holding in Shubert v. Debard₄ that an applicant for a license to carry a handgun who claimed "self-defense" as a reason for the license could not constitutionally be required to demonstrate factually the "need" for the license. The Kessler and Schubert opinions both contain detailed discussions on the scope and policy of the right of the people to keep and bear arms as a private individual right. This article₅ reviews the historical background of that right, and the consequent signaling of judicial trend₆ rejecting the exclusively collective right theory of the right of the people to keep and bear arms.

The exclusively collective right theory stands for the proposition that the "right of the people to keep and bear arms" - as expressed in the second amendment of the United States Constitution,₇ or as specified in various ways in thirty-seven state constitutions₈ - is strictly limited to guaranteeing a collective right of the organized militia or National Guard.₉ However, both the Indiana and the Oregon courts rejected the exclusively collective right theory in favor of a theory that recognizes both a private individual constitutional right and a collective right.₁₀ Because these decisions set forth with great clarity the underlying fundamental issues in a concrete context, a rather detailed review of the reasoning of these decisions is useful in understanding their important implications.₁₁ Moreover, the Oregon court in State v. Kessler₁₂ based its decision on an explicit acceptance of the English legal traditions of the right of self-defense and the right of the individual citizen to have arms for that purpose. Accordingly, this tradition will be explored first, followed by a review of the holdings of Schubert and Kessler.₁₃ Finally, this article will explore the implications of these cases regarding the exclusively collective right theory of the right of the people to bear arms.

I. English Background on Arms Possession

The first limitation in England on the right of a law-abiding person to keep and bear arms was enacted as one of the provisions in the 1181 Statute of Assize of Arms.₁₄ It prohibited the possession and ordered the disposition of all coats of mail or breastplates in the hands of Jews.₁₅ The next prohibition apparently came in the 1328 Statute of Northampton under King Edward III,₁₆ and banned all private persons from using any force in public "in affray of the peace," or from going or riding armed in public at all.₁₇ This Statute of Northampton was re-enacted with increased penalties under Richard II: ₁₈ In its re-enacted version the statute focused solely on going or riding armed, that is, regardless of an affray of the peace. Nevertheless, by 1686 the English common law courts had placed a judicial gloss on these statutes and required for a conviction thereunder, that the accused had gone armed "malo animo" (with evil intent) or "to terrify the King's subjects."₁₉ Specifically, in Rex v. Knight₂₀ the accused had been charged with violating the Statute of Northampton by "walk[ing] about the streets armed with guns, and go[ing] into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects."₂₁ Under the judge's instructions, that an essential element of the crime of violating the Statute of Northampton was "go[ing] armed to terrify the King's subjects,"₂₂ the jury acquitted the accused.₂₃ The court further noted that the Statute of Northampton was "but an affirmance" of the common law.₂₄ Interestingly, the same court alleged an elitist statutory policy that the carrying of arms implied that "the King [was] not able or willing to protect his subjects."₂₅ Nevertheless, the court imposed a judicial gloss on the Statute, that for a conviction the prosecution must prove that the carrying of arms was "to terrify the King's subjects"₂₆ or "with evil intent,"₂₇ in order to preserve the common law principle of allowing "Gentlemen to ride armed for their Security."₂₈

The reason for this judicial interpretation of the Statute of Northampton, requiring the element of evil intent in addition to going armed in public, may be understood from the judicial experience and societal conditions underlying the late nineteenth century observation of Jean Jules Jusserand, French ambassador to the United States, 1902-1915, and Pulitzer prize-winning historian, concerning fourteenth century England: "[M]anners being violent, the wearing of arms was prohibited, but honest folk alone conformed to the law, thus facilitating matters for the others..."₂₉ That is, unilateral personal disarmament of law-abiding citizens simply did not work. Accordingly, despite the literal language of the Statute of Northampton, the English rule was that "persons of quality are in no [d]anger of offending [the Statute of Northampton] by wearing common [w]eapons."₃₀

Subsequent eighteenth century English decisions recognized the right to keep guns in the home for defense, as well as the right to carry ordinary arms in public in a peaceful manner, the forest and game laws notwithstanding. Thus, in 1738, a conviction for keeping a gun contrary to the 1707 Statute of Anne,₃₁ which prohibited unqualified persons₃₂ from possessing certain listed hunting devices "or any other Engines to kill and destroy the Game"₃₃ was quashed on appeal. The court reasoned that a gun "differs from nets and dogs, which can only be kept for an ill purpose."₃₄ The defendant had successfully argued that a "gun is necessary for defense of a house, or for a farmer to shoot crows."₃₅ Later, in a 1752 civil action for trover, plaintiff claimed that defendants had unlawfully converted his gun, while the defendants claimed that their seizure of the gun had been lawful because the lord of the manor where the gun had been kept had ordered them to seize it.₃₆ The court held that, since there was no allegation in defendants' plea that the gun had actually been used to kill any game, the plaintiff's demurrer to the defendant's plea should be sustained. Accordingly, the court rendered judgment for the plaintiff. One of the judges noted that "as a gun may be kept for the defence of a man's house, and for divers other lawful purposes, it was necessary [for defendants] to allege...that the gun had been used for killing game."₃₇ Thus, Professor Edward Christian commented: "Every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game."₃₈ Accordingly, Professor Christian disagreed₃₉ with Blackstone's assertion that one of the purposes of the game laws was "prevention of popular insurrections and resistance to the government, by disarming the bulk of the people."₄₀ Professor Christian maintained that such a purpose "did not operate upon the minds of those who framed the game laws."₄₁ On the other hand, Blackstone was probably referring to the Game Act of 1671₄₂ enacted under Charles II, which prohibited any person who did not have an annual income of at least 100 pounds (except persons of or above the rank of esquire and owners or keeper of forests) from keeping any gun, bow, greyhound, setting dog, or long dog. This latter statute, however, did not judicially survive the English Bill of Rights of 1689,₄₃ with its provision for the right to keep arms.₄₄ At any rate, the Game Act of 1671 was not explicitly repealed by legislation until the 183l Act to Amend the Game Laws.₄₅

II. English Bill of Rights of 1689: Legislative History of Provision for Right to Have Arms

To understand the background of the 1689 English Bill of Rights' provision on the right to have arms,₄₆ it is important to review the earlier disarmament tactics of Charles II (1660-1686) and James II (1686-1688).₄₇ Specifically, the Militia Act of 1662,₄₈ which centralized the control of the militia in the King and his lord lieutenants, empowered these lieutenants or their deputies to authorize searches of the person and the home of anyone adjudged by these lieutenants or their deputies to be "dangerous to the peace of the Kingdom,"₄₉ and to "seize all arms in the custody or possession"₅₀ of these "dangerous" persons. This Militia Act of 1662 also provided for the abolition of a portion of the earlier militia system, the "trained bands."₅₁

Soon after ascending to the throne in 1686, King James II utilized a combination of the Militia Act of 1662₅₂ and the Game Act of 1671₅₃ to inform his lieutenants that "a great many persons not qualified by law under pretence of shooting matches kept muskets or other guns in their houses,"₅₄ and the militia was ordered to "cause strict search to be made for such muskets or guns and to seize and safely keep them till further order."₅₅ After the Glorious Revolution and the flight of James II from England in 1688, a Convention Parliament met on January 22, 1689 to declare the rights of the people₅₆ in an instrument known as the Declaration of Right, which was, after the ascension of William and Mary, turned into a regular act of the legislature as a statute,₅₇ the Bill of Rights of 1689.

The provisions of the English Bill of Rights of 1869 touching on the right to have arms were originally proposed on February 2, 1689, by the House of Commons Committee "to bring in the general Heads of such Things as are absolutely necessary to be considered for the better securing our Religion, Laws and Liberties,"₅₈ and the House agreed upon the following:

It is thus clear, from the foregoing provisions, that the earlier arms seizures by the King and his militia₆₀ were prime motivating factors for the provisions on the right to keep arms, and that an armed populace was considered "necessary for the public safety."₆₁

In any event, after some conferences with, and at the request of, the House of Lords, the House of Commons on February 11, 1689 modified the phrase "provide and keep," in provision 7, to "have,"₆₂ and also deleted the word "common"₆₃ and added the phrase "suitable to their Condition, and as allowed by Law," after the word "Defence."₆₄ As finally passed on February 12, 1689, by the House of Lords, the text of the English Bill of Rights' provision on the right to keep arms read: "[t]hat the Subjects which are Protestants may have Arms for their

Defence, suitable to their Condition, and as allowed by Law."₆₅

Among other things, this legislative history demonstrates that the English Bill of Rights' provision on the right to keep arms was a reaction to previous seizures of privately held arms, and that the solemn understanding was reached that such seizures should never occur again. Thus, the initially proposed purpose of this right for their "common Defence"₆₆ was transformed into a right "for their Defence"₆₇ that is, to include an individual right of armed self-defense as had obtained under the common law. It is noteworthy that an apparent attempt to restrict the right to keep and bear arms, in the United States Bill of Rights, to "the common defence"₆₈ was defeated just 100 years later, in the first Senate of the United States in the floor debates on the proposal for what became the second amendment.

Another English statute was enacted in 1689,₆₉ which was repealed in 1844,₇₀ banning any "papist or reputed papist"₇₁ who refused to take an oath₇₂ prescribed by the new regime of William and Mary from keeping any arms, except upon a demonstration before the justices of the peace that such arms were "necessary"₇₃ for the defense of "home or person."₇₄ This religiously discriminatory legislation, however, did not give rise to any reported litigation. Nevertheless, this legal history shows the essentially political nature of arms control legislation, as well as the intent of the English Bill of Rights of 1689 to guarantee a private individual the right to have arms for "self preservation and defence."₇₅

III. Opinion of the Recorder of London, 1780, on the Scope of the Right to Have Arms in England

In eighteenth century England, there were various voluntary armed associations dedicated to assisting constables in the apprehension of criminals and the suppression of riots,₇₆ it being considered "the right and duty of every subject, under common law, to help maintain the Queen's peace."₇₇ In 1780, one of the foremost of such associations, the London Military Foot Association, sought the advice if the Recorder of London₇₈ as to its legal standing.₇₉ His long, clearly reasoned reply was of wide interest, especially in view of the frequency with which such associations appeared for many years afterwards.₈₀ Further, his reply remains of interest because of its succinct and cogent interpretation of the scope of the English people's right to keep and bear arms. The Recorder stated:

It is a matter of some difficulty to define the precise limits and extent of the rights of the people of this realm to bear arms, and to instruct themselves in the use of them, collectively; and much more so to point out all the acts of that kind, which would be illegal or doubtful in their nature.

The right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right, but as a duty; for all the subjects of the realm, who are able to bear arms, are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of the public peace. And that this right, which every Protestant most unquestionably possesses individually, may, and in many cases must, be exercised collectively is likewise a point which I conceive to be clearly established by the authority of judicial decisions and ancient acts of parliament, as well as by reason and common sense.

From the proposition, that the possession and the use of arms, to certain purposes, is lawful, it seems to follow, of necessary consequence, that it cannot be unlawful to learn to use them (for such lawful purposes) with safety and effect...and, by the same mode of reasoning, from the right of using arms, in some cases, collectively and in bodies, follows the right of being collectively, as well as individually, instructed in the use of them, if it be true, which I apprehend it most clearly is, that the safe and effectual use of arms in collective bodies cannot be taught to separate individuals.₈₁

Beyond this point, however, there were difficulties. The question arose: would it be lawful for a vast multitude of many thousands of armed men, "without any visible occasion or apparent lawful object, unauthorized by government or any magistrate, to assemble together, and march where they pleased, for the purpose, as they professed, of instructing and exercising themselves in the use of arms?"₈₂ The Recorder answered: "[t]o this question, stated in these unlimited terms, I should certainly answer in the negative; because, in my opinion, an affirmative answer would amount to a dissolution of all government and a subversion of all law."₈₃ In short, there was no right to wanton behavior. Where then could a line be drawn, and how could the number and manner of assembling to exercise the use of arms be defined to determine the legality of such acts? The Recorder felt it impossible "to draw any such precise line, or to lay down any proposition respecting the legality of armed societies, which would hold true at all times and in all cases, without qualification or restriction. The circumstances of the case...must decide upon the legality of every such meeting."₈₄

Four broad indications, however, were given for determining the legality of the activities of armed societies. First, the professed purpose and object of any such society had to be lawful. Second, they had to at all times, when assembled, conduct themselves in a peaceable and orderly manner and conform to their professed purpose; every breach of the peace on their part would have been greatly aggravated by the very circumstance of being committed by a body of armed men. Third, the numbers of such a society could not manifestly and greatly exceed the professed objects of their instruction. Fourth, they could not, in any case, except for the suppression of a sudden, violent, and felonious breach of the peace, proceed to act without the authority of the civil magistrates.₈₅ With these restrictions, the Recorder was clearly of the opinion that it was lawful, "and, in many cases, highly meritorious,"₈₆ for the citizens to instruct themselves in the use of arms in private, orderly societies. Besides "immediate self-defence,"₈₇ the lawful purposes for which arms could be used included the "suppression of violent and felonious breaches of the peace, the assistance of the civil magistrate in the execution of the laws, and the defence of the kingdom against foreign invaders."₈₈ Therefore, whenever those occasions occur, "the use of arms becomes not only a the right, but the duty,"₈₉ of every citizen capable of bearing arms.

Finally, the recorder of London reasoned that, to avoid being subject to the military command and discipline of the Crown, the London Association should "consider themselves as part of the civil, and not a military association, and confine themselves, in the present state of things, to those civil objects which will, upon the principles before laid down, sufficiently justify them in exercising, and perfecting themselves in the use of arms, without any commission whatever."₉₀ The Recorder thus emphasized the fundamental social value and the legality of purely civil bodies in the maintenance of internal law and order, and differentiated sharply between that function and the employment of the regular forces in opposing foreign enemies.₉₁ On the other hand, the Recorder's starting point was the right of the private individual to have arms for self-defense purposes in cases of sudden, felonious attacks,₉₂ i.e., where there is no time to invoke the aid of established authority. In short, the Recorder's opinion re-affirmed the unqualified individual right to keep and bear arms as at common law, and the qualified collective right to bear arms.

IV. Common Law and Constitutional Standards for the Right to Keep and Bear Arms

As with other constitutional provisions, the right to keep and bear arms cannot be understood without reference to common law standards:

These same considerations apply to the state constitutional conventions. Thus the state provisions for a constitutional right to keep and bear arms are likewise illuminated by the common law. In particular, the right to keep and bear arms should, therefore, be interpreted in terms of the common law, both as to the type of arms which are constitutionally protected and as to the permissible conditions, manner, and mode under which the right may be exercised. It is, therefore, useful to look at the corresponding facets of the common law on keeping and bearing arms, as well as their adaptation to state constitutional provisions for a right to keep and bear arms.

The foregoing Recorder of London's opinion₉₄ is a thorough exposition of the common law principle that although the law-abiding person may not march with arms in groups whenever, wherever, and howsoever he pleases,₉₅ he is, nevertheless, entitled to keep ordinary arms at home and carry those arms "to protect himself when he is going singly or in a small party upon the road where he is traveling or going for the ordinary purposes of business."₉₆ As expounded by the thirteenth century scholar Henry de Bracton:

In the last century, the American authority on criminal law, Francis Wharton, paraphrasing the eighteenth century English Serjeant-at-Law William Hawkins, expounded upon the provisions in the 1328 Statute of Northampton₉₈ on using force and carrying arms in public places:

Of particular interest here was the clear exemption, from the ban of the statute, of "common weapons" as opposed to "Dangerous and unusual weapons in such a manner as will naturally cause a terror to the people." Sir William Blackstone, echoing this approach, wrote:

Interestingly, in 1914 the Irish Court for Crown Cases Reserved quashed a conviction₁₀₂ under the Statute of Northampton₁₀₃ on the ground that the indictment under that statute was defective in alleging merely that the defendant "did go about on the public road...armed,"₁₀₄ in that the indictment failed to "negative lawful occasion, and conclude in terrorem populi [to the terror of the populace]."₁₀₅ The Attorney General unsuccessfully argued that the indictment was sufficient in view of the evidence at trial because, "it being usual for persons to be unarmed, the presence of an armed man, particularly with such a dangerous weapon as is proved here, must be 'apt to terrify' those with whom he comes in contact."₁₀₆ That is, the simple fact of being armed inherently would "bring terror upon others;"₁₀₇ the weapon in question being a "loaded revolver."₁₀₈ In rejecting this argument of the Attorney General, the Irish Court thus considered a loaded revolver to be a common weapon within the meaning and protection of the common law.

The distinction between the absolute right to keep arms and the more qualified right to carry arms, pursuant to the common law and the Statute of Northampton,₁₀₉ was also discussed by Sir Edward Coke. Lord Coke, "widely recognized by the American colonists 'as the greatest authority of his time on the laws of England',"₁₁₀ cogently wrote:

In support of this approach, Coke cited the 1506 Yearbook case which had originated the doctrine that a man's house is his castle in the following terms:

If one is in his house, and hears that such a one will come to his house to beat him, he may assemble folk of his friends and neighbors to help him, and aid in the safeguard of his person; but if one were threatened that if he should come to such a market, or into such a place, he should there be beaten, in that case he could not assemble persons to help him go there in personal safety, for he need not go there, and he may have a remedy by surety of the peace. But a man's house is his castle and his defense, and where he has a peculiar right to stay...₁₁₂

The "true doctrine,"₁₁₄ according to Beale, had been expressed by the Supreme Court of California₁₁₅ in these terms:

One who expects to be attacked is not always compelled to employ all the means in his power to avert the necessity of self-defence before he can exercise the right of self-defence. For one may know that if he travels along a certain highway he will be attacked by another with a deadly weapon and be compelled in self-defence to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out of his way to avoid the expected unlawful attack.₁₁₆

And a "well reasoned" opinion,₁₁₇ according to Beale, had been delivered by the Supreme Court of Missouri,₁₁₈ similarly upholding the right of self-defense in public places with arms, in these terms:

If the mere expectation of an assault from an adversary is to deprive the expectant of the right of self-defence, merely because he goes armed in the vicinity of his enemy, or goes out prepared upon the highway where he is likely at any moment to meet him, then he has armed himself in vain, and self-defence ceases wherever expectation begins. We do not so understand the law. The very object of arming one's self is not to destroy expectation of a threatened attack, but to be prepared for it should it unfortunately come.₁₁₉

It should be stressed that Professor Beale was no champion of the "Macho" spirit; rather, he was a staunch advocate of the minority American rule₁₂₀ requiring retreat as far as possible with safety, even from a sudden murderous assault (absent a larcenous intent), before using deadly force in a defense against the murderous assault. Indeed he derided the contrary rule (not requiring retreat)s prevalent in "the West and South,"₁₂₁ as founded in the "ethic of the duelist, the German officer, and the buccaneer."₁₂₂ Nevertheless even Beale would not require a person to constrict his ordinary business travels in an effort to avoid criminal threats.₁₂₃ Otherwise the criminals would dictate the ordinary course of business travels. Accordingly, there was no doubt at common law that an individual was permitted to carry common arms "to protect himself when he is going singly or in a small party upon the road where he is traveling or going for the ordinary purposes of business."₁₂₄ The 1506 Yearbook case forbade a person only to "assemble persons to help him go there."₁₂₅

With this common law background in mind, it is important to realize that a right to keep and bear arms inherently carries with it the right to use those arms for various lawful purposes. For example, the American constitutional right to keep and bear arms has been squarely held to protect the right to use those arms in self-defense in the home against burglars:

The Constitutions of the United States and Louisiana give us the right to keep and bear arms. It follows logically, that to keep and bear arms gives us the right to use the arms for the intended purpose for which they were manufactured.₁₂₆

As to the type of arms protected by state constitutional provisions for a right to keep and bear arms, common law standards were adopted by the Texas Supreme Court in 1875 in connection with the then thirteenth section of the Texas Bill of Rights ("Every person shall have the right to keep and bear arms in the lawful defense of himself or the State, under such regulations as the Legislature may prescribe.")₁₂₇ The court stated:

Later, in 1912, the highest court of New York State held constitutional a statutory ban against possession of certain (but not all) weapons because "the act in question relates to instruments which are ordinarily used for criminal and improper purposes and which are not amongst those ordinary legitimate weapons of defense and protection which are contemplated by the Constitution and the Bill of Rights."₁₂₉ Similarly implementing the common law standard of "common weapons"₁₃₀ as the type of arms embedded in the Michigan state constitutional provision that "[e]very person has a right to bear arms for the defense of himself and the State,"₁₃₁ the Supreme Court of Michigan in 1931 declared:

Accordingly, the Supreme Court of Michigan in 1931 upheld a statutory ban on such weapons as blackjacks, bombs, and rockets,₁₃₃ because the statute did not ban "ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure."₁₃₄ This approach echoed that of Justice Oliver Wendell Holmes in writing for the United States Supreme Court in the 1914 case of Patsone v. Pennsylvania,₁₃₅ in which the Court upheld a ban on the possession in the hands of aliens of rifles and shotguns, as a hunting control measure, because the ban did not extend to pistols that presumably would be "needed occasionally for self-defence."₁₃₆ Thus the common law exemptions of common weapons"₁₃₇ from the ban of the Statute of Northampton₁₃₈ had been firmly established as American standards for constitutionally protected arms by the middle of the present century.

V. The Indiana Schubert Decision

Schubert v. DeBard₁₃₉ involved the Indiana gun control statute which provides that, before the Superintendent of State Police may issue a pistol-carrying license, an investigation must be made concerning the applicant.₁₄₀ If it appeared to the Superintendent "that the applicant has a proper reason for carrying a handgun and is of good character and reputation and a proper person to be so licensed,"₁₄₁ then the Superintendent "shall issue to the applicant either a qualified or an unlimited license to carry any handgun or handguns lawfully possessed by the applicant."₁₄₂ In Schubert the applicant for a pistol-carrying license had been denied the license by the Superintendent of Indiana State Police on the sole ground of lack of sufficient "need".₁₄₃ The trial court upheld₁₄₄ the Superintendent on the ground that he had properly exercised administrative discretion delegated to him by the statutory provision of "proper reason" for carrying a handgun. The Indiana Court of Appeals, however, held in 1980 that the statutory delegation of these powers and duties to the Superintendent could not be constitutionally construed as allowing him to deny a pistol-carrying license merely because the applicant had failed to demonstrate, to the satisfaction of the Superintendent, that he "needed"₁₄₅ to defend himself. The Indiana Supreme Court subsequently declined to review this decision.₁₄₆

In Schubert, the Superintendent had held a hearing on the issue of the pistol-carrying license applicant's "need" for self-protection and had denied the license solely on the administrative finding that "the evidence disclosed that...applicant does not have a proper reason to be so licensed."₁₄₇ The Superintendent contended that the statutory specification for "a proper reason for carrying a handgun,"₁₄₈ as a prerequisite for a pistol-carrying license vested in him the power and duty: (1) to evaluate the facts underlying an applicant's assertion of "self-defense"₁₄₉ as a stated reason for desiring the license, and (2) to grant or deny the license upon the basis of an administrative evaluation of whether or not the applicant "needed"₁₅₀ to defend himself. The Schubert majority₁₅₁ held that this approach of the Superintendent, of factually evaluating the sufficiency of an applicant's "need" for a pistol-carrying license," contravenes the essential nature of the constitutional guarantee."₁₅₂ The Indiana constitution, adopted in 1851, provides that "the people shall have a right to bear arms, for the defense of themselves and the State."₁₅₃

The Schubert majority was of the opinion that the general and ordinary sense of the words used, as well as the framers' intention evinced by the legislative history of the right to bear arms provision of the Indiana State Constitution, led to the conclusion that the Superintendent of State Police could not, consistent with the Constitution, look behind the pistol-carrying license applicant's stated reason of "self-defense" and then deny the license on the grounds of an insufficient factual showing by the applicant of "need" to defend himself.₁₅₄ The Schubert majority alluded to the 1850 constitutional debate over this Indiana provision for a right of the people to bear arms and noted that one stage of that debate had opened with "[t]he twelfth [now 32nd] section, providing that no law should restrict the right of the people to bear arms, whether in defense of themselves or the State, next came up in order."₁₅₅

The statutory requirement of "proper reason" for a pistol-carrying license was interpreted by the Schubert court as having been satisfied by the applicant's assigned reason of "self-defense" which stood "unrefuted"₁₅₆ by the Superintendent, such assigned reason being "constitutionally a 'proper reason' within the meaning of [the Indiana Statute]."₁₅₇ The Schubert court thus interpreted the Indiana statutory requirement of "proper reason" for a pistol-carrying license as a delegation of authority to the Superintendent of State Police that was very narrow in scope because of the Indiana constitutional provision for "the right of the people to bear arms for the defense of themselves and the State."₁₅₈ Because, however, of an unresolved question as to the applicant's suitability of character to be licensed, an issue which had arisen at the hearing conducted by the Superintendent, the Schubert court remanded the case to the Superintendent for a new hearing and determination on that question.

Interestingly one of the two judges in the Schubert majority stated in a concurring opinion₁₆₀ that he would have joined in the 1958 dissent of Judge Emmert in Matthews v. State.₁₆₁ In Matthews, the Indiana Supreme Court, in a 4 to 1 decision, had upheld the facial constitutionality of the Indiana statutory pistol licensing scheme, with Judge Emmert dissenting on the basis of the Indiana constitutional provision for the right of the people to bear arms.

The dissenting judge in Schubert, Judge Staton, was sharply critical of the Schubert majority for allegedly failing to follow the legal principles previously enunciated in Matthews. The majority in that case had stated that the question of whether a pistol-carrying license applicant satisfied the statutory requirement of having a "'proper reason for carrying a pistol and [of being] of good character and reputation and a suitable person to be so licensed' are questions of fact; and the Legislature may delegate the function of determining these facts upon which the execution of the legislative policy, as expressed in the Act, is dependent."₁₆₂ More specifically, the 4 to 1 majority in Matthews had stated that "the Superintendent of State Police, with his special training and experience and with the facilities which he has at his command for securing information, is capable and qualified to determine whether an applicant for a license to carry a pistol has a 'proper reason' therefor, and whether he is a 'suitable person' to have a pistol in his possession at will."₁₆₃ Accordingly, Judge Staton contended that under the Matthews decision the Indiana Supreme Court had thus 'rejected the very proposition of law that the [Schubert] majority has tendered here today: that the Superintendent's capacity to evaluate the factual basis for an applicant's stated need of self-defense violated...the Indiana Constitution."₁₆₄ In sharp reply, the Schubert majority maintained that allowing a denial of a license grounded solely upon an administrative determination by the Superintendent of an insufficiency of the factual basis or showing of need by the applicant would "supplant a right with a mere administrative privilege which might be withheld simply on the basis that such matters as the use of firearms are better left to the organized military and police forces even where defense of the individual citizen is involved."₁₆₅

Judge Staton further complained that "the upshot of the Majority's approach, were it given effect, would be the deregulation of handguns,"₁₆₆ and that subsequent to the Matthews₁₆₇ decision "numerous studies have confirmed that handgun restrictions promote the public safety and welfare."₁₆₈ Judge Staton cited four such studies.₁₆₉ Of these four studies, however, all done in the 1960's, only two of them were statistical, factual studies: the 1969 staff report of Newton and Zimring to the National Commission on the Causes and Prevention of Violence entitle Firearms and Violence in American Life,₁₇₀ and the 1969 Geisel study entitled The Effectiveness of State and Local Regulation of Handguns: A Statistical Analysis.₁₇₁ This latter Geisel study was severely criticized, as statistically dubious, in a subsequent comprehensive statistical study by Douglas Murray,₁₇₂ which pointed out the mathematical defects and weaknesses in the Geisel study.₁₇₃ Not least among such defects was the Geisel mathematical determination of weighting coefficients by "random testing,"₁₇₄ which could produce weights that are the result of chance correlation with the dependent variables and consequently are probably useful for only this one set of data, severely limiting the generalizability of their [Geisel] conclusions."₁₇₅ In other words, Geisel had failed to firmly establish the statistical criteria for his analysis before analyzing the data, such prior establishment of criteria being essential for an unbiased determination of correlations, or of any other statistical inferences, from a given sample set of data. Moreover, Douglas Murray's comprehensive analysis showed no "significant effect [of gun control laws] on lowering rates of violence associated with firearms."₁₇₇ Moreover, Franklin Zimring, one of the authors of the 1967 staff report to the National Commission on the Causes and Prevention of Violence₁₇₈ cited by Judge Staton, recently stated, in response to a question posed on the efficacy of gun control laws as a deterrent to violent crime, that "this whole notion of cause and effect is suspect. Criminologists are very much like forecasting economists and gypsy fortunetellers. We cannot explain gun-related behavior, so how can we say what has affected it, either up or down."₁₇₉

The basic disagreement between the Schubert majority₁₈₀ and dissenting Judge Staton thus concerned the proper scope of power delegated to the Superintendent of State Police by virtue of the statutory specification that a pistol-carrying license applicant have "a proper reason for carrying a handgun"₁₈₁ in view of the Indiana constitution's provision that the "people shall have a right to bear arms, for the defense of themselves and the state."₁₈₂ Judge Staton was of the opinion that there was no constitutional impediment to the Superintendent's using his training, experience, and investigatory capabilities to go behind a bare "self-defense"₁₈₃ assertion by the applicant, and then making an independent finding of fact as to whether there was sufficient evidence that the applicant had a "genuine need to carry a handgun"₁₈₄ On the other hand, the Schubert majority held that the Indiana constitutional provision for a right to bear arms constricted the scope of authority delegated by the statute to the Superintendent, to the extent of forbidding him, in the fact-finding process, to evaluate the actual degree of need for the pistol-carrying license, while still allowing him to deny the license if he found, based upon his expertise, that there was substantial evidence that the applicant in fact, had an improper reason for carrying a handgun.₁₈₅ Absent finding such improper reason, the Schubert majority would allow a pistol-carrying license to be denied only if there was a valid finding by the Superintendent that the applicant was deficient in the statute's personal character requirements of "good character and reputation and a proper person to be so licensed."₁₈₆ Accordingly, the Schubert majority remanded the cause for a determination of these personal character requirements.₁₈₇ In so doing, the Schubert majority, confronted by a state constitutional guarantee of the individual's right to bear arms, treated a license to carry a pistol in public places somewhat analogously to the federal courts' treatment of permits to speak and disseminate information, in a public forum ("speech plus"): precise, open, and accessible licensing.₁₈₈

VI. The Oregon Kessler Decision

A month before the Indiana Supreme Court unanimously refused to review the court of appeals decision in Schubert,₁₈₉ the Oregon Supreme Court unanimously handed down a landmark decision in State v. Kessler.₁₉₀ In Kessler, the court held that an Oregon statute₁₉₁ banning the private possession of various listed weapons was unconstitutional in view of the provision in the Bill of Rights of the Oregon constitution for a right to bear arms.₁₉₂

In Kessler,₁₉₃ the police had entered the defendant's apartment at his own request and had inadvertently found two "billy clubs;"₁₉₄ a "billy" being included in the statute's proscribed list of weapons. Mr. Kessler was indicted and convicted for possession of the two billy clubs. The intermediate court of appeals in Oregon rejected defendant's constitutional attack, that the statute was violative of the right to bear arms, on the ground that the statute was a reasonable exercise of the "police power of the State to curb crime."₁₉₅ The intermediate Oregon court approvingly quoted an abbreviated portion of the 1931 Michigan Supreme Court's basic theory in People v. Brown:

The Supreme Court of Oregon unanimously reversed the conviction of Mr. Kessler, under the statute banning private possession of certain weapons, on the ground that the Oregon constitution₁₉₇ guaranteed to the individual person the right to possess any "hand-carried weapon commonly used by individuals for personal defense,"₁₉₈ such as billy clubs. The court hastened to add that the legislature could, consistent with the constitution, ban the possession any arms by felons and the carrying of any arms by anyone in a concealed manner.₁₉₉

The unanimous Kessler court₂₀₀ reasoned that the wording of the Oregon constitutional provision on the right to bear arms₂₀₁ differed both from that of the second amendment of the United States Constitution,₂₀₂ which has "not yet been held to apply to state limitations on the bearing of arms,"₂₀₃ and from those of many other state constitutional provisions on the right to keep and/or bear arms.₂₀₄ Nevertheless, all these state constitutional provisions share a common historical background.₂₀₅ Specifically, the Oregon provision regarding the right to bear arms was taken from the 1851 Indiana Constitution - which provision on this score had been taken unchanged from the Bill of Rights of the original 1816 Indiana Constitution.₂₀₆ In turn, the drafters of the Indiana Bill of Rights in 1816 borrowed freely from the wording of other state constitutions - most notably of Kentucky, Ohio, Tennessee, and Pennsylvania, all drafted between 1776 and 1802.₂₀₇ Moreover, the constitutions adopted by the original colonies generally included a bill or declaration of rights, many of them patterned largely on the English Bill of Rights of 1689,₂₀₈ which contained a list of alleged illegal actions of James II followed by a declaration of the rights of the people. Among the illegal actions specified in the list and noted by the Kessler court were the assertions that James II:

The parallel provisions of the declaration of rights in the English Bill of Rights of 1689 provided:

The Kessler court further noted that the phrase "for the defense of themselves and the State" in both the Oregon and Indiana constitutional provisions for the right to bear arms appeared in the present-day constitutions of six other states.₂₁₁ This language, the Kessler court held, implied three separate justifications and purposes for a state constitutional right to bear arms:

According to Kessler court, the constitutional phraseology "the right to bear arms...for the defense of ... the State" refers to that historical preference for a citizen militia over a standing army,₂₁₃ whereas the language "a right to bear arms in defense of themselves..." refers to the closely related purpose of "the deterrence of government from oppressing unarmed segments of the population,"₂₁₄ as well as "an individual's right to bear arms to protect his person and home."₂₁₅ Furthermore, the unanimous Kessler court noted that today five state constitutions explicitly provide for the right of an individual person to bear arms "in defense of his home, person and property."₂₁₆

The Kessler court also discussed the type of arms the possession of which by private individuals is thus constitutionally protected in Oregon. The court observed that in the colonial and revolutionary war era there was an identity of arms used by militiamen and by private citizens in defense of home and person.₂₁₇ It reasoned that, therefore, the drafters of constitutional provisions on the right to bear arms intended to include as constitutionally protected arms those hand-carried arms used by settlers for both personal and military defense,₂₁₈ such as ordinary firearms and other hand-carried weapons commonly used for personal defense,₂₁₉ but not cannon or other heavy ordinance which were not privately kept by militiamen or private citizens.₂₂₀ Moreover, the Kessler court further observed that the Industrial Revolution had brought about unprecedented changes in technology and concomitant changes in weaponry.₂₂₁ Thus, whereas firearms and other hand-carried arms have remained as weapons of personal defense, the more advanced automatic weapons, explosives, and chemicals of modern warfare have never been intended or commonly used for personal possession and protection.₂₂₂ Accordingly, today the constitutionally protected arms do not include cannon or other sophisticated modern weapons, but rather include the modern day equivalents of weapons used by colonial militiamen "for defense of the State,"₂₂₃ plus the "hand-carried weapons commonly used by individuals [including police] for personal defense.₂₂₄ In adopting this formulation of the individual right to bear arms, together with the stipulation that the legislature could constitutionally prohibit the carrying of any arms by individuals in a concealed manner and the possession of any arms at all by felons,₂₂₅ the Kessler court in effect adopted a modern equivalent of the common law principle that the right to bear arms extended to "persons of quality...wearing common weapons."₂₂₆

Almost a year after the Kessler decision, the Oregon Supreme Court handed down another decision, this time on the subject of carrying a "billy" in an automobile.₂₂₇ The court held that the same statute was unconstitutional as applied, because the statute "is written as a total proscription of the mere possession of certain weapons, and that mere possession, insofar as a billy is concerned, is constitutionally protected."₂₂₈

Conclusion

The collective right theory of the right to bear arms was born in the 1905 decision of the Kansas Supreme Court in Salina v. Blaksley.₂₂₉ In that case, the court held that solely a collective right was guaranteed by section 4 of the Kansas constitution's bill of rights, which provided:"[t]he people have the right to bear arms for their defense and security."₂₃₀ The Kansas Supreme Court declared: "[t]he provision in section 4 of the bill of rights, that 'the people have the right to bear arms for their defense and security,' refers to the people as a collective body."₂₃₁ Seventy-five years later, under somewhat similar state constitutional provisions for a right of the people to bear arms, the Indiana Schubert v. DeBard₂₃₂ decision and the Oregon Sate v. Kessler₂₃₃ decision squarely rejected the exclusively collective right theory in favor of an individual right interpretation.₂₃₄ Such interpretation was fully in accord with the common law and historical background of the right to keep and bear arms.₂₃₅ Accordingly, these recent individual right interpretations can be expected to signal a judicial trend in favor of the right of the individual citizen to keep and carry arms, especially in those states that have constitutional provisions for the right to bear arms. Moreover, the articulation in Kessler of "the deterrence of government from oppressing unarmed segments of the population,"₂₃₆ as one of the basic purposes of the right of the people to bear arms under the Oregon constitution, cogently indicates a similar basic purpose and an individual right interpretation for "the right of the people to keep and bear arms"₂₃₇ under the second amendment of the United States Constitution.

1. 291 Or. 255,630,P.2d 824 (1981)

2. 289 Or. 359, 614 P.2d 94 (1980)

3. 425 N.E .2d 739 (Ind. Ct. App. 1981)

4. 398 N.E.2d. 1339 (Ind. Ct. App. 1980), leave to appeal denied, No. 3-177A10 (Ind.Aug. 28, 1980).

5. See also C.L. Cantrell, The Right to Bear Arms: A Reply, 53 Wisc. Bar Bulletin 21 (1980); D.I.

Caplan, Handgun Control: Constitutional or Unconstitutional - A Reply to Mayor Jackson, 10 N.C. Cent. L.J. 53 (1978); S.P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U.L. Rev. 1 (1981).

6. Other recent cases adopting the pro-individual view of the right to keep and bear arms include: Rabbitt v. Leonard, 36 Conn.Supp. 108, 110, 413 A.2d 489, 491 (Conn. Super. Ct. 1979) (under Connecticut constitution, a citizen has a "fundamental right to bear arms in self-defense, a liberty interest which must be protected by procedural due process"); Motley v. Kellog, 409 N.E. 2d 1207 (Ind. Ct. App. 1980) (preliminary injunction ordering Chief of Police of Gary, Indiana, to make applications for handgun licenses available to citizens who desire to apply); Archibald v. Codd, 59 A.D. 2d 867, 399 N.Y.S. 2d 235 (1977), leave to appeal denied, 43 N.Y. 2d 649, 403 N.Y.S. 2d 1027 (1978) (no showing of "need" is required either for a pistol license limited to on-premises possession, at home or place of business, or for added pistols on such license); Salute v. Pitchess, 61 Cal. App. 3d 557, 132 Cal Rptr. 345 (1976) (sheriff mandated to make investigation and determination on individual basis and not to reject wholesale all pistol-carry license applications submitted by private individuals).

7. The second amendment in the Bill of Rights of the Constitution reads: "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." U.S. Const. amend. II. See 1 Stat. 2l (1845).

8. Provisions of state constitutions on the right to bear arms. Refer to State Contitutions - Right to Bear Arms.

9. The exclusively collective right theory was first enunciated in Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619, 620 (1905)

10. Schubert v. DeBard, 398 N.E. 2d 1339; State v. Kessler, 289 Or. 359, 614 P.2d 94.

11. See also Comment, The Impact of State Constitutional Right to Bear Arms Provisions on State Gun Control Legislation, 38 U. Chi. L. Rev. 185 (1970).

12. 289 Or. 359, 614 P.2d 94.

13. Schubert v. DeBard, 398 N.E.2d. 1339; State v. Kessler, 289 Or. 359, 614 P.2d.94.

14. Statute of Assize of Arms, art. 3 (1181), printed in W. Stubbs, Select Charters and Other Illustrations of English Constitutional History 154, 155 (8th ed. 1900).

15. Id.

16. 2 Edw. 3, ch. 3 (1328).

17. Id: That no Man great nor small, of what Condition soever he be, except the King's Servants in his Presence, and his Ministers in executing of the King's Precepts, or of their Office, and such as be in their Company assisting them, and also upon a Cry made for Arms to keep the Peace, and the same in such Places where such Acts happen, be so hardy to come before the King's Justices, or other of the King's Ministers doing their Office with Force and Arms, nor bring no Force in affray of the Peace, nor to go nor ride armed by Night nor by Day, in Fairs, Markets, nor in the Presence of the Justices or other Ministers, nor in no Part elsewhere, upon Pain to forfeit their Armour to the King, and their Bodies to Prison at the King's Pleasure...

18. 7 Rich. 2, ch. 13 (1383); 20 Rich. 2, ch. 1 (1396).

19. Rex v. Knight, Comb. 38, 39, 90 Eng. Rep. 330; 3 Mod. Rep. 117, 87 Eng. Rep. 75, 76 (K.B. 1686).

20. Id.

21. 3 Mod. Rep. at 117, 87 Eng. Rep. at 76.

22. Id. at 118, 87 Eng. Rep. at 76.

23. Id. at 117, 87 Eng. Rep. at 76

24. Id. at 118, 87 Eng. Rep. at 76.

25. Id.

26. Id.

27. Rex v. Knight, Comb. at 39, 90 Eng. Rep. at 330 ("malo animo").

28. Id. The term "Gentleman" includes "one, who, without any title, bears a coat of arms, or whose ancestors have been freemen..." G.Jacob's New Law Dictionary (10th ed. 1782). This definition would thus include in America all members of the militia; that is, "all citizens capable of bearing arms." Presser v. Illinois, 116 U.S. 252, 265 (1886). Compare infra note 100.

29. J.J. Jusserand, A Literary History of the English People from the Origins to the Renaissance 270 (1895).

30. 1 W. Hawkins, A Treatise of the Pleas of the Crown 136 (5th ed. London 1771); See also 1 Russell on Crime 266 (12th ed. 1964).

31. 5 Anne, ch. 14 (1706, 1707 Gregorian calendar.

32. E.g., persons not gamekeepers or lords, etc., Id.

33. Id.

34. Rex v. Gardner, 2 Strange 1098, 93 Eng. Rep. 1056 (K.B. 1739). See also, same case, Andrews 255, 257, 95 Eng. Rep. 386, 388 ("These acts restrain the liberty which was allowed by the common law.")

35. Id.

36. Wingfield v. Stratford, Sayer 15, 96 Eng. Rep. 787 (K.B. 1752).

37. Id. at 16, 96 Eng. Rep. at 787 (Lee, C.J., concurring).

38. 2 W. Blackstone, Commentaries 411 n.2 (E. Christian ed. 1794).

39. Id.

40. Id. at *412.

41. Id. at 411 n.2.

42. 22 & 23 Car. 2, ch. 25 (1670, 1671 Gregorian calendar).

43. 1 W. & M., Sess. 2, ch. 2 (1688, 1689 Gregorian calendar)

44. Id.

45. 1 & 2 Will. 4, ch. 32 (1831). Except for the provisions dealing with powers of gamekeepers, search warrants, and description of persons who are not allowed to have or keep for themselves any guns, bows, greyhounds, or other animals or things, the 1671 Game Act had been repealed in 1827. 7 & 8 Geo. 4, ch. 27 (1827).

46. 1 W. & M., Sess. 2, ch. 2 (1688, 1689 Gregorian calendar).

47. For a more comprehensive treatment of the disarmament tactics of Charles II, aided by the enormous power of the royal proclamation, see, J.L. Malcolm, Disarmed: The Loss of the Right to Bear Arms in Restoration England, 1 - 17 (1980).

48. 13 & 14 Car. 2, ch. 3 (1662). An earlier enactment in 1661 had put control over "the militia and land forces of this kingdom," 13 Car. 2, ch. 6 parag. 2 (1661) completely into the hands of the King, and had held harmless and had indemnified all those who, in carrying out earlier royal orders, had been found guilty of "assaulting, arresting, detaining or imprisoning any person suspected to be fanatick, sectary or disturber of the peace, or seizing of

arms, or searching of houses for arms, or suspected persons." Id. at parag. 3.

49. 13 & 14 Car. 2, ch. 3(1662).

50. Id.

51. Id. at parag. 20.

52. 13 & 14 Car. 2, ch. 3(1662).

53. 22 & 23 Car. 2 ch. 25 (1670, 1671 Gregorian calendar).

54. Letter from Earl of Sunderland to Earl of Burlington (Dec. 6, 1686), reprinted in 2 Calender of State Papers, Domestic Series, James II 314 (Jan. 1686-May 1687).

55. Id. See also J.L. Malcolm, supra note 47, at 15 n.57.

56. 1 B. Schwartz, The Bill of Rights: A Documentary History 40 (1971).

57. Id. at 41. See also B. Schwartz, The Roots of Freedom, A Constitutional History of England 195-98 (1967).

58. 10 H.C. Jour. 15 (1688, 1689 Gregorian calendar).

59. Id. at 17.

60. See supra notes 45-53 and accompanying text.

61. The American right to keep and bear arms likewise has been held to be for "maintaining the public security." Presser v. Illinois, 116, U.S. 252, 265 (1886).

62. 10 H.C. Jour. at 25-26.

63. Id.

64. Id.

65. 14 H.L. Jour. 125 (1688, 1689 Gregorian calendar).

66. See supra note 59 and accompanying text.

67. See supra note 63 and accompanying text.

68. 2 B. Schwartz, The Bill of Rights: A Documentary History 1153-54 (1971).

69. 1 W. & M., Sess. 1, ch. 15, parag. 4 (1688, 1689 Gregorian calendar).

70. 7 & 8 Vict., ch. 102 (1844).

71. 1 W. & M., Sess. l, ch. 15, parag. 4 (1688, 1689 Gregorian calendar).

72. Id. at parag. 2, incorporating by reference the earlier oath prescribed in 30 Car. 2, ch. l, paragraphs 2 and 3 (1677), abjuring the doctrine of "transubstantiation of the elements of bread and wine into the body and blood of Christ" and declaring that "the invocation or adoration of the virgin Mary or any other saint, and the sacrifice of the mass as they are now used in the church of Rome, are superstitious and idolatrous." Id. at parag. 3.

73. 1 W. & M., Sess. 1, ch. 15, parag. 4f (1688, 1689 Gregorian calendar).

74. Id.

75. 1 W. Blackstone, Commentaries *144. See also Rex v. Dewhurst, 1 State Trials (n.s.) 529, 60l (1820), quoting approvingly the idea expressed by Blackstone that the English Bill of Rights provision on the right to have arms was "indeed a public allowance under due restrictions of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." The "due restrictions" were the common law prohibitions against carrying dangerous and unusual weapons in public places "against the public peace, by terrifying the good people of the land..." 4 W. Blackstone, Commentaries parag. 149.

76. 4 L. Radzinowicz, A History of English Criminal Law 107 (1968).

77. Id. at 105

78. Jowitt's Dictionary of English Law 1510 (2d, ed. 1977) defines the recorder of London as follows: One of the justices of oyer and terminer, and a justice of the peace of the quorum for putting the laws in execution for the preservation of the peace and government of the City...Being the mouth of the City, he delivers the sentences and judgments of the court therein, and also certifies and records the City customs, etc. He is chosen by the Lord Mayor and aldermen.

Id.

79. L. Radzinowicz, supra note 76.

80. Id.

81. W. Blizard, Desultory Reflections on Police: with an Essay on the Means of Preventing Crimes and Amending Criminals 59-61 (1785) (emphasis in original).

82. Id. at 61.

83. Id. (emphasis in original).

84. 4 L. Radzinowicz, supra note 76, at 108 (emphasis in original).

85. Id.

86. W. Blizard, supra note 81, at 63.

87. Id.

88. Id.

89. Id.

90. 4 L. Radzinowicz, supra note 76, at 109 (emphasis in original).

91. Id. at 110.

92. Id. at 108.

93. Ex Parte Grossman, 267 U.S. 87, 108-09 (1925). For example, current standards for the fourth amendment are controlled by "the common-law understanding." Payton v. New York, 445 U.S. 573, 591 (1980). See also Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 302 (1967) (unless "wholly irrational"); and compare Grosjean v. American Press Co. 297 U.S. 233, 249 (1936) (unless "never accepted by the American colonists").

94. See supra notes 79-92 and accompanying text.

95. See supra notes 82-83 and accompanying text; cf. Presser v. Illinois, 116 U.S. 252 (1886) (upholding constitutionality of State requirement of license for armed parades in cities).

96. Rex v. Dewhurst, 1 State Trials (n.s.) 529, 601-02 (1820).

97. 4 H. De Bracton, De Legibus Et Consuetudinibus Angliae f.162b, (3 T. Twiss trans. 23, 1880).

According to Professor Thorne, the fragment ("when a strong man armed, &c") is taken from Luke 11:21 [3 S. Thorne, Bracton on the Laws and Customs of England 21 n.9 (1977)], which reads: "When a strong man fully armed guards his residence, his belongings are undisturbed." In the original Latin used by Bracton, the word corresponding to the English term "strong man" is "fortis." The word "fortis" may also be translated as "mentally, brave, courageous,..." Cassell's Latin Dictionary 230 (1952). Bracton's works were often "cited by colonial Americans in trying to reach decisions based on English legal tradition." L. Wright, Magna Carta and the Tradition of Liberty 39 (1976).

It should be noted that the common law came into being during the reign of Henry II, 12th century (just before Bracton). Moreover, Henry II was a king "who trusted his people, and who had no standing army, but encouraged his subjects to be armed, as unpopular tyrant dare not do." G. Trevelyan, A Shortened History of England 139 (1942). Thus it is no accident that the common law developed with a presupposition of the keeping of arms by the people in their homes.

98. See supra notes 16-17 and accompanying text.

99. 3 F. Wharton, a Treatise on Criminal Law 2061-62 (11th ed. 1912) (paraphrasing W. Hawkins, supra note 30).

100. 1 W. Hawkins, supra note 30, at 135-36 (emphasis added). Almost identical language is found in 1 W. Russell, A Treatise on Crimes and Misdemeanors, Book II, ch. 26, 589 (6th ed. 1896), and in 1 Russell on Crime 266 (12th ed. 1964). As to the limitation to "persons of quality" it should be remembered that the famous Chapter 39 of Magna Carta was originally intended merely "as a written confirmation of the baronial right, recognized by feudal custom, not to be tried by inferiors, but only by men of baronial rank." B. Schwartz, The Roots of Freedom 18 (1967). See also supra note 28.

101. 4 W. Blackstone, Commentaries *149.

102. Rex v. Smith, [1914] 2 Ir. R. 190.

103. 2 Edw. 3, ch. 3(1328), and see supra note 17 for text thereof.

104. [1914] 2 Ir. R. at 201.

105. Id. at 204.

106. Id. at 199.

107. Id.

108. Id. at 201.

109. See supra note 17 for text thereof.

110. Payton v. New York, 445 U.S. 573, 594 (1980), quoting from A. Howard, The Road From Runnymede 118-19 (1968).

111. 3 E. Coke, Institutes 161-62 (5th ed. 1671). Similar language is found in a case reported by Lord Coke himself, Semayne's Case, 77 Eng.Rep. 194, 195 (K.B. 1603)quoted in Payton v. New York, 445 U.S. at 596 n.44.

112. Anon., Y.B. Trin. 14 Hen. 7 (1499), reported in Y.B. 21 Hen. 7, f.39, pl. 50 (1506), translated in J.Beale, Jr. A Selection of Cases and Other Authorities Upon Criminal Law 569 (2d ed. 1907).

113. Beale, Jr., Homicide in Self-Defence, 3 Colum. L. Rev. 526, 543 (1903). Beale believed strongly that the law was and should be: "One whose life is threatened may therefore go about his lawful business regardless of the threats, and may arm himself for his own protection without thereby forfeiting any right to protect himself." Id.

114. Id.

115. People v. Gonzales, 71 Cal 569, 12 P. 783 (1887).

116. Id. at 568, 12 P. at 787.

117. See Beale, Jr., supra note 113, at 544.

118. State v. Evans, 124 Mo. 397, 28 S.W. 8 (1894).

119. Id. at 411, 28 S.W. at 11.

120. See Perkins, Self-Defense Re-Examined, 1 U.C.L.A. L.Rev. 567, 577 (1903).

121. Beale, Jr. Retreat From a Murderous Assault 16 Harv. L. Rev. 567, 577 (1903).

122. Id.

123. See Beale, Jr., supra note 113. See, supra notes 113-17 and accompanying text.

124. Rex. v. Dewhurst, 1 State Trials (n.s.) 529, 602 (1820).

125. See Anon., supra note 112.

126. McKellar v. Mason, 159 So. 2d 700, 702 (La.App.), aff'd 245 La. 1075, 162 So.2d 571 (1964)

127. State v. Duke, 42 Tex. 455, 458 (1875) (a case cited as among "some of the more important opinions" in United States v. Miller, 307 U.S. 174, 182 (1939).

128. Id. (emphasis added).

129. People v. Persce, 204 N.Y. 397, 403, 97 N.E. 877, 879 (1912) (emphasis added).

130. 1 W. Hawkins, supra note 30, at 136.

131. People v. Brown, 253 Mich. 537, 538, 235, N.W. 245, 246 (1931), quoting Mich. Const. art. 2, para. 5 (a case cited among "some of the more important opinions" in United States v. Miller, 307 U.S. 174, 182 (1939)).

132. 253 Mich. at 541, 235 N.W. at 246-47 (emphasis added).

133. Id. at 544, 235 N.W. at 247-48.

134. Id. at 542, 235 N.W. at 247.

135. 232 U.S. 138 (1914).

136. Id. at 143.

137. See supra notes 30, 100, 130 and accompanying texts.

138. See supra notes 16, 17, 103, 109 and accompanying texts.

139. 398 N.E.2d 1339 (Ind. Ct. App. 1980).

140. Ind. Code Ann. sect. 35-23-4.1-5 (Burns 1979).

141. Id.

142. Id.

143. 398 N.E.2d at 1341 n.5.

144. Id. at 1339.

145. Id. at 1341.

146. No. 3-177A10 (Ind. Aug. 28, 1980).

147. 398 N.E. 2d at 1342 (Staton, J., dissenting).

148. Ind. Code Ann. Sec. 35-23-4.1-5 (Burns 1979).

149. 398 N.E.2d at 1341.

150. Id.

151. Schubert v. DeBard was a 2 to 1 decision with Judge Hoffman filing a separate concurring opinion. Id. at 1342.

152. Id. at 1341.

153. Ind. Const. art. I, Sec. 32.

154. 398 N.E.2d at 1341-42.

155. Id. at 1341, Citing 2 Debates in Indiana Convention 1391 (1850), and noting that the debate focused upon whether special language should be required to permit the legislature to regulate the carrying of concealed weapons.

156. 398 N.E.2d at 1341.

157. Id. (referring to the Indiana gun control statute, Ind. Code Ann. sect. 35-23-4.1-5 (Burns 1979)).

158. 398 N.E.2d at 1341.

159. Id. at 1341-42.

160. Id. at 1342.

161. 237 Ind. 677, 148 N.E.2d 334 (1958).

162. Id. at 684, 148 N.E. 2d at 337. In 1973, the Indiana legislature replaced the phrase "suitable person" with "proper person." 1973 Ind. Acts P.L. 333, sect. 5. The phrase "proper reason" remained unchanged. See Schubert v. DeBard, 398 N.E.2d at 1343 n.1.

163. 237 Ind. at 684-85, 148 N.E.2d at 337.

164. 398 N.E.2d at 1344.

165. Id. at 1341.

166 Id. at 1344.

167. 237 Ind. 677, 148 N.E.2d 334.

168. 398 N.E.2d at 1344.

169. Final Report, National Commission on the Causes and Prevention of Violence (1969); Newton & Zimring, Firearms and Violence in American Life 62-67 (Staff Report to the National Commission on the causes and prevention of Violence, No. 7, 1969); Mosk, Gun Control Legislation: Valid and Necessary, 14 N.Y.L. Forum 694 (1968); Geisel, The Effectiveness of State and Local Regulation of Handguns: A Statistical Analysis, 1969 Duke L.J. 647.

170. Newton & Zimring, supra note 169.

171. Geisel, supra note 169.

172. Murray, Handguns, Gun Control Laws and Firearm Violence. 23 Soc. Probs. 81 (1975).

173. Geisel, supra note 169.

174. Murray, supra note 172, at 83.

175. Id.

176. Id. at 91.

177. Id.

178. See supra note 169 and accompanying text.

179. Studies on Gun Law Divided on Impact, N.Y. Times, Jan. 21, 1981, at A17, col. 1. See also Briggs, The Great American Gun War, 45 Pub. Interest 37, 38 (1976) ("[N]o policy research worthy of the name has been done on the issue of gun control...[E]ven the most elementary methods of cost-benefit analysis have not been employed."); Wright & Rossi, Weapons and Violent Crime, Executive Summary 8 (1981) ("[E]xisting knowledge about weapons, crime, and the relationships between them is, in general, not adequate as a basis for policy formulation. Even the most basic descriptive questions - for example, the actual number of firearms in private hands, or the crime reduction effects, if any, of weapons measures enacted in the past - remain essentially unanswered to any useful degree of precision."); Kessler, Enforcement Problems of Gun Control: A Victimless Crime Analysis, 16 Crim. L. Bull. 131, 133 (1980) ("[R]esults are mixed.").

180. See supra note 151.

181. Ind. Code Ann. sect. 35-23-4.1-5 (Burns 1979).

182. Ind. Const. art. I, sect. 32.

183. 398 N.E.2d at 1344.

184. Id.

185. Id. at 1342 Staton, J., dissenting).

186. Id. at 1340, citing Ind. Code Ann. parag. 35-23-4.1-5(a) (Burns 1979) (emphasis added).

187. Id. at 1342.

188. Murdock v. Pennsylvania, 319 U.S. 105 (1943) (license tax unconstitutionally burdensome on dissemination of religious books and pamphlets from house to house); Cox v. New Hampshire, 312 U.S. 569 (1941) (permit system for parades constitutional so long as discretion in licensing official was limited to uniform, nondiscriminatory standards of time, place and manner to prevent confusion by overlapping parades); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (municipal ordinance requiring advance written notice to police by any person desiring to canvass, solicit, or call from house to house for a charitable or political purpose held void for vagueness); Village of Schaumberg v. Citizens for a Better Environment, 440 U.S. 620 (1980) (requirement that 75% of proceeds of charitable organization must be used directly for charitable purposes held facially unconstitutional); International Soc. for Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir. 1978) (regulations adopted by city commissioner of aviation restricting distribution of literature at airports held unconstitutionally vague as well as overly restrictive as to time allotted (1/2 hour per day) for registration of persons wishing to distribute materials); Wright v. Chief of Transit Police, 558 F.2d 67 (2d Cir. 1977) (total ban on sale of newspapers by hand on city subways could not stand without exploration of alternative possibilities short of total ban). Kunz v. New York, 340 U.S. 290 (1957) (local ordinance, requiring a permit to conduct a religious meeting on New York city streets but containing no standard to guide administrative action in granting or denying the permit, held unconstitutional).

189. 398 N.E.2d 1339.

190. 289 Or. 359, 614 P.2d 94 (180).

191. Or. Rev. Stat. sect. 166.510(1) (1965).

192. "The people shall have the right to bear arms for the defence of themselves and the State, but the Military shall be kept in strict subordination to the civil power." Or. Const. art. I, sect. 27.

193. 289 Or. at 359, 614 P.2d at 94.

194. Id. at 370, 614 P.2d at 99.

195. State v. Kessler, 43 Or. App. 303, 307, 602 P.2d 1096, 1097 (1979), quoting People v. Brown, 253 Mich. 537, 543, 235 N.W. 245, 247 (1931).

196. 43 Or. App. at 307, 602 P.2d at 1097.

197. Or. Const. art. I, sect. 27.

198. 289 Or. at 371, 614 P.2d at 100.

199. Id. at 370, 614 P.2d at 99.

200. Id. at 359, 614 P.2d at 94.

201. Or. Const. art. I, sect. 27, supra note 192 and accompanying text.

202. U.S. Const. amend. II 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." See. 1 Stat. 21 (1845).

203. 289 Or. at 362, 614 P.2d at 95.

204. Id.

205. Id.

206. Id. at 363, 614 P.2d at 96.

207. Id.

208. Id.

209. Id. at 364, 614 P.2d at 96, citing English Bill of Rights, 1689, 1 W. & M., Sess. 2 ch. 2. For background and legislative history of the English Bill of Rights, see supra notes 46-75 and accompanying text.

210. 289 Or. at 364, 614 P.2d at 96.

211. Id at 366, 614 P.2d at 97. The six other states are Florida (Fla. Const. art. I, sect. 8),

Kentucky (Ky. Const. sect. 1), Pennsylvania (PA. Const. art. I, sect. 21), South Dakota (S.D. Const. art. VI, sect. 24), Vermont (Vt. Const. ch. 1, art. 16), Wyoming (Wyo. Const. art. I, sect. 24). See supra note 8 for texts of these provisions.

212. 289 Or. at 366, 614 P.2d at 97. Compare: "Until after the Boer War, there was no real restriction in this country [England] on the carrying of arms. Indeed the right to carry arms would have been defended as a traditional right of Englishmen...an ultimate prerogative - the means to resist unjust government by force." Phelan, Men and Arms, 110 Law J. 131 (1969).

213. 289 Or. at 366, 614 P.2d at 97.

214. Id. at 367, 614 P.2d at 98.

215. Id.

216. Id. at 368 n.14, 614 P.2d at 98 n. 14. The five state constitutional provisions containing the phrase "in defense of his home, person and property" are: Colo. Const. art. II, sect. 13; Miss. Const. art III, sect. 13; Mo. Const. art. I, sect. 23; Mont. Const. art. III, sect. 13; Okla. Const. art. II, sect. 26. See supra note 8 for texts of these provisions.

217. 289 Or. at 368, 614 P.2d at 98. See also United States v. Miller, 307 U.S. 174, 179 (1939) ("[T]he Militia comprised all males physically capable of acting in concert for the common defense...And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.").

218. 289 Or. at 368, 614 P.2d at 98.

219. Id.

220. Id.

221. Id. at 369, 614 P.2d at 99.

222. Id.

223. Id.

224. Id. at 371, 614 P.2d at 100.

225. Id. at 370, 614 P.2d at 99.

226. 1 W. Hawkins, supra note 30. See supra notes 99-100 and accompanying text. See also VI Record of Proceedings, Sixth Illinois Constitutional Convention, Bill of Rights Committee Report sect. 27 (1970) ("The substance of the right is that a citizen has the right to possess and make reasonable use of arms that law-abiding persons commonly employ for purposes of recreation or the protection of person and property.")

227. State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981).

228. Id. at 257, 630 P.2d at 826.

229. 72 Kan. 230, 83 P.619 (1905).

230. Id., 83 P. at 620.

231. Id. at 231, 83 P. at 620.

232. 398 N.E.2d 1339.

233. 289 Or. 359, 614 P.2d 94.

234. See supra text notes 139-226.

235. See supra text notes 14-138.

236. 289 Or. at 367, 614 P.2d at 98.

237. U.S. Const. Am.II (emphasis added).

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¦ Reprinted by permission of: ¦ ¦ New York University Law Review ¦ ¦ 37 NYULR 181 (1962) pp. 181-185. ¦ +------------------------------------------+

It is almost a commonplace to say that free government is on trial for its life. But it is the truth. And it has been so throughout history. What is almost as certain: It will probably be true throughout the foreseeable future. Why should this be so? Why is it that, over the centuries of world history, the right to liberty that our Declaration of Independence declares to be "inalienable" has been more often abridged than enforced?

One important reason, surely, is that the members of a free society are called up-on to bear an extraordinarily heavy responsibility, for such a society is based upon the reciprocal self-imposed discipline of both the governed and their government. Many nations in the past have attempted to develop democratic institutions, only to lose them when either the people or their government lapsed from the rigorous self-control that is essential to the maintenance of a proper relation between freedom and order. Such failures have produced the totalitarianism or the anarchy that, however masked, are the twin mortal enemies of an ordered liberty.

Our forebears, well understanding this problem, sought to solve it in unique fashion by incorporating the concept of mutual restraint into our Nation's basic Charter. In the body of our Constitution, the Founding Fathers insured that the Government would have the power necessary to govern. Most of them felt that the self-discipline basic to a democratic government of delegated powers was implicit in that document in the light of our Anglo-Saxon heritage. But our people wanted explicit assurances. The Bill of Rights was the result.

This act of political creation was a remarkable beginning. It was only that, of course, for every generation of Americans must preserve its own freedoms. In so doing, we must turn time and again to the political consensus that is our heritage. Nor should we confine ourselves to examining the diverse, complicated, and sometimes subordinate issues that arise in the day-to-day application of the Bill of Rights. It is perhaps more important that we seek to understand in its fullness the nature of the spirit of liberty that gave that document its birth.

Thus it is in keeping with the high purposes of this great University that its School of Law sponsor a series of lectures emphasizing the role of the Bill of Rights in contemporary American life. And it is particularly appropriate, after the splendid lectures of Mr. Justice Black (1) and Mr. Justice Brennan (2) on the relationship of the Bill of Rights to the Federal and State Governments, respectively, that you should delegate to someone the task of discussing the relationship of the Bill of Rights to the military establishment. This is a relationship that, perhaps more than any other, has rapidly assumed increasing importance because of changing domestic and world conditions. I am honored to undertake the assignment, not because I claim any expertise in the field, but because I want to cooperate with you in your contribution to the cause of preserving the spirit as well as the letter of the Bill of Rights.

Determining the proper role to be assigned to the military in a democratic society has been a troublesome problem for every nation that has aspired to a free political life. The military establishment is of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society.

The critical importance of achieving a proper accommodation is apparent when one considers the corrosive effect upon liberty of exaggerated military power. In the last analysis, it is the military--or at least a militant organization of power--that dominates life in totalitarian countries regardless of their nominal political arrangements. This is true, moreover, not only with respect to Iron Curtain countries, but also with respect to many countries that have all of the formal trappings of constitutional democracy.

Not infrequently in the course of its history the Supreme Court has been called upon to decide issues that bear directly upon the relationship between action taken in the name of the military and the protected freedoms of the Bill of Rights. I would like to discuss here some of the principal factors that have shaped the Court's response. From a broad perspective, it may be said that the questions raised in these cases are all variants of the fundamental problem: Whether the disputed exercise of power is compatible with preservation of the freedoms intended to be insulated by the Bill of Rights.

I believe it is reasonably clear that the Court, in cases involving a substantial claim that protected freedoms have been infringed in the name of military requirements, has consistently recognized the relevance of a basic group of principles. For one, of course, the Court has adhered to its mandate to safeguard freedom from excessive encroachment by governmental authority. In these cases, the Court's approach is reinforced by the American tradition of the separation of the military establishment from, and its subordination to, civil authority. On the other hand, the action in question is generally defended in the name of military necessity, or, to put it another way, in the name of national survival. I suggest that it is possible to discern in the Court's decisions a reasonably consistent pattern for the resolution of these competing claims, and more, that this pattern furnishes a sound guide for the future. Moreover, these decisions reveal, I believe, that while the judiciary plays an important role in this area, it is subject to certain significant limitations, with the result that other organs of government and the people themselves must bear a most heavy responsibility.

Before turning to some of the keystone decisions of the Court, I think it desirable to consider for a moment the principle of separation and subordination of the military establishment, for it is this principle that contributes in a vital way to a resolution of the problems engendered by the existence of a military establishment in a free society.

It is significant that in our own hemisphere only our neighbor, Canada, and we ourselves have avoided rule by the military throughout our national existences. This is not merely happenstance. A tradition has been bred into us that the perpetuation of free government depends upon the continued supremacy of the civilian representatives of the people. To maintain this supremacy has always been a preoccupation of all three branches of our government. To strangers this might seem odd, since our country was born in war. It was the military that, under almost unbearable conditions, carried the burden of the Revolution and made possible our existence as a Nation.

But the people of the colonies had long been subjected to the intemperance of military power. Among the grievous wrongs of which they complained in the Declaration of Independence were that the King had subordinated the civil power to the military, that he had quartered troops among them in times of peace, and that through his mercenaries he had committed other cruelties. Our War of the Revolution was, in good measure, fought as a protest against standing armies. Moreover, it was fought largely with a civilian army, the militia, and its great Commander-in-Chief was a civilian at heart. After the War, he resigned his commission and returned to civilian life. In an emotion-filled appearance before the Congress, his resignation was accepted by its President, Thomas Mifflin, who, in a brief speech, emphasized Washington's qualities of leadership and, above all, his abiding respect for civil authority. (3) This trait was probably best epitomized when, just prior to the War's end, some of his officers urged Washington to establish a monarchy, with himself at its head. He not only turned a deaf ear to their blandishments, but his reply, called by historian Edward Channing "possibly, the grandest single thing in his whole career," (4) stated that nothing had given him more painful sensations than the information that such notions existed in the army, and that he thought their proposal "big with the greatest mischiefs that can befall my Country."(5)

Such thoughts were uppermost in the minds of the Founding Fathers when they drafted the Constitution. Distrust of a standing army was expressed by many. Recognition of the danger from Indians and foreign nations caused them to authorize a national armed force begrudgingly. Their viewpoint is well summarized in the language of James Madison, whose name we honor in these lectures:

Their apprehensions found expression in the diffusion of the war powers granted the Government by the Constitution. The President was made the Commander-in-Chief of the armed forces. But Congress was given the power to provide for the common defense, to declare war, to make rules for the Government and regulation of the land and naval forces, and to raise and support armies, with the added precaution that no appropriation could be made for the latter purpose for longer than two years at a time--as an antidote to a standing army. Further, provision was made for organizing and calling for the state militia to execute the laws of the Nation in times of emergency.

Despite these safeguards, the people were still troubled by the recollection of the conditions that prompted the charge of the Declaration of Independence that the King had "effected to render the military independent and superior to the civil power." They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troop in any house in time of peace without the consent of the owner. Other Amendments guarantee the right of the people to assemble, to be secure in their homes against unreasonable searches and seizures, and in criminal cases to be accorded a speedy and public trial by an impartial jury after indictment in the district and state wherein the crime was committed. The only exceptions made to these civilian trial procedures are for cases arising in the land and naval forces. Although there is undoubtedly room for argument based on the frequently conflicting sources of history, it is not unreasonable to believe that our Founders' determination to guarantee the pre-eminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights.(7)

Earl Warren, former Chief Justice of the United States.

*This article was delivered as the third James Madison Lecture at the New York University Law Center on February 1, 1962.

(1) Black, The Bill of Rights, 35 N.Y.U.L. Rev 865 (1960)

(2) Brennan, The Bill of Rights and the States, 36 N.Y.U.L. Rev. 761 (1961)

(3) 5 Freeman, George Washington 477 (1952)

(4) 3 Channing, A History of the United States 376 (1912).

(5) 24 Writings of Washington 272 (Fitzpatrick ed. 1938)

(6) The Federalist No. 41, at 251 (Lodge ed. 1888) (Madison).

(7) See, e.g., Pinkney's recommendations to the Federal Convention, 2 Records of the Federal Convention 341 (Farrand ed. 1911), and the discussion by Mason and Madison, Id. at 617; Resolutions on Ratification of the Constitution by the States of Massachusetts, New Hampshire, New York and Virginia, reprinted in Documents Illustrative of Formation of the Union of American States, H.R. Doc. No. 398, 69th Cong., 1st Sess. 1018-20, 1024-44 (1927).

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¦Reprinted by permission of: ¦ ¦Hastings Constitutional Law Quarterly ¦ ¦Fall, 1975, Volume 2, No. 4, pp. 961-1001.¦ +------------------------------------------+

As a result of a steadily rising crime rate in recent years, a sharp public debate over the merits of federal firearms regulation has developed. "Crime in the streets" has become a national preoccupation; politicians cry out for "law and order;" and the handgun has become a target of attention. The number of robberies jumped from 138,000 in 1965 to 376,000 in 1972, while murders committed by guns shot up from 5,015 to 10,379 in the same period, and the proportion of cases in which the murder weapon was a firearm rose from 57.2 percent to 65.6 percent.₁ The recent attempt on the life of President Ford in Sacramento by an erstwhile member of the "Manson Gang" serves to heighten the terror of a nation already stunned by the assassinations of John F. Kennedy, Martin Luther King and Robert F. Kennedy, and the maiming of George Wallace. Many people assert that these tragedies could have been prevented by keeping the murder weapons out of the hands that used them. Others vehemently dispute this claim.

The free flow of firearms across state lines has undermined the traditional view of crime and gun control as local problems. In New York City, long noted for strict regulation of all types of weapons, only 19% of the 390 homicides of 1960 involved pistols, by 1972, this proportion had jumped to 49 percent of 1,691. In 1973, there were only 28,000 lawfully possessed handguns in the nation's largest city, but police estimated that there were as many as 1.3 million illegal handguns, mostly imported from southern states with lax laws.₂ These statistics give credence to the arguments of proponents of gun control that federal action is needed, if only to make local laws enforceable.

The great majority of the American people now support registration of both handguns and rifles. When the Gallup Poll asked the question: "Do you favor or oppose registration of all firearms?" in a recent survey, more than two-thirds (67 percent) favored the concept, while 27 percent opposed it, and 6 percent had no opinion. Even gunowners endorsed registration by a margin of 55 percent to 39 percent with 6 percent undecided.₃ Yet, although the intensity of belief is undoubtedly far stronger in the minority than in the majority Congress has remained dormant.₄ The zeal of those individuals dedicated to the preservation of the "right to keep and bear arms" in its present form cannot be doubted.

American history has often seen social and political problems transformed into constitutional issues.₅ The gun control issue is no exception to this phenomenon, and particular attention has been focused on the Second Amendment to the United States Constitution, which 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 infringes."

Proponents of gun control seize the phrase "a well regulated Militia" and find in it the sole purpose of the constitutional guarantee. They therefore assert that "the right of the people to keep and bear Arms" is a collective right which protects only members of the organized militia, e.g., the National Guard, and only in the performance of their duties. It is their belief that no one else can claim a personal right to keep and bear arms for any purpose whatsoever, criminal or otherwise.

Opponents maintain that having guns is a constitutionally protected individual right, similar to other guarantees of the Bill of Rights. Some hold this right to be absolute, while others would allow reasonable restrictions, perhaps even licensing and registration. Still others would limit the protection of the Second Amendment to individuals capable of military service and to weapons useful for military purposes. The essential characteristic of the "individualist" interpretation, as opposed to the "collectivist" view, is that the Second Amendment precludes, to some extent at least, congressional interference in the private use of firearms for lawful purposes such as target shooting, hunting and self-defense.

It is one of the ironies of contemporary politics that the many of the most vocal supports of "law and order" are persistent critics of federal firearms regulation. "Guns don't kill people; people kill people" is their philosophy. Firearms in private hands are viewed as a means of protecting an individual's life and property, as well as a factor in helping to preserve the Republic against foreign and domestic enemies. Whereas strict constructionism is often the preferred doctrine in interpreting the constitutional rights of criminals, such a narrow view of the Second Amendment is unacceptable. Far from being narrowly construed, the Second Amendment is held out to be a bulwark of human freedom and dignity as well as a means of safeguarding the rights of the individual against encroachment by the federal government. It thus becomes a weapon in the arsenal of argument against gun control, and each new proposal is said to infringe upon the rights of the people to keep and bear arms.

The clash between "collectivist" and "individualist" interpretations of the Second Amendment has not been definitely resolved. Even members of Congress believe that their power to regulate firearms is limited by the existence of an individual right to have, to hold, and to use them. Senator Hugh Scott, Republican of Pennsylvania, writes in Guns & Ammo magazine: "As my record shows, I have always defended the right-to-bear-arms provision of the Second Amendment. I have a gun in my own home and I certainly intend to keep it."₆

There has been very little case law construing the Second Amendment, perhaps because there has been very little federal legislation on the subject of firearms. This may change, and it may become necessary for the Supreme Court to rule upon constitutional challenges to federal statutes based on the Second Amendment. Even before this occurs, it would be helpful to dispel the uncertainties that exist in Congress about the extent of federal legislative power.

In order to determine accurately the intended meaning of the Second Amendment, it is necessary to delve into history. It is necessary to consider the very nature of a constitutional guarantee - whether it is an inherent, fundamental right, derived from abstract human nature and natural law or, alternatively, a restriction on governmental power imposed after experience with abuse of power.

Historically, the right to keep and bear arms has been closely intertwined with questions of political sovereignty, the right of revolution, civil and military power, military organization, crime and personal security. The Second Amendment was written neither by accident nor without purpose; it was the product of centuries of Anglo-American legal and political experience. This development will be examined in order to determine whether the "collectivist" or "individualist" construction of the Second Amendment is correct.₇

Victorious at the Battle of Hastings in 1066, William the Conqueror was able to assert personal ownership over all the land of England and sovereignty over its people. All power emanated from the King, and all persons held their property and privileges at his sufferance.

Feudal society was organized along military lines in 1181. King Henry II, great grandson of the Conqueror, issued the Assize of Arms, which formalized the military duties of subjects. The first three articles of the decree specify what armament each level of society to maintain - ranging from the holder of a knight's fee, who must equip himself with a hauberk, a helmet, a shield and a lance, down to the poorest freeman armed only with an iron headpiece and a lance. The philosophy of the law is expressed in the fourth article, which is as follows:

The remainder of the statute prescribes rules and procedures governing its administration. The Assize of Arms marked the beginning of the militia system; its clear purpose was to strengthen and maintain the King's authority.

In 1215, the rebellious Norman barons forced King John to sign the Magna Carta, a document justly regarded as the foundation of Anglo-American freedom. The Great Charter consists of sixty-three articles which set forth in great detail certain restrictions on the King's prerogative. Its introductory article concludes, "Ye have also granted to all the free men of Our kingdom, for Us and Our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of Us and Our heirs."₉ Implicit in this statement is the fact that sovereignty is deemed to be vested in the office of kingship, and that the King is restricting his powers in favor of his subjects. Roscoe Pound makes this comment on the Magna Carta:

Centuries were to pass before an English sovereign would again proclaim the doctrine of unrestricted royal power which William the Conqueror had established by force of arms, and which King John had lost in the same manner.

Even though medieval England had not yet developed firearms, the government found it necessary to severely restrict such weapons as did exist. In 1328 Parliament passed the celebrated Statute of Northhampton, which made it an offense to ride armed at night, or by day in fairs, markets, or in the presence of king'[s ministers.₁₁

The fifteenth century dynastic struggle known as the War of Roses virtually destroyed the feudal system, and prepared the way for a new consolidation of royal power beginning with the coronation of Henry Tudor as King Henry VII in 1485. The Tudors maintained a large degree of national unity. Their task was made easier by practical applications of gunpowder. The royal cannon made resistance by the nobility futile.

Perhaps because of the weakness of their hereditary claims, the Tudor monarchs attempted to control and manipulate Parliament, rather than assert the royal prerogative in defiance of Parliament. It was even admitted that Parliament could regulate the succession to the throne, acting in conjunction with the reigning monarch, of course. In the reign of Elizabeth, it was declared to be high treason to deny that Parliament and the Queen could "make laws and statutes of sufficient force and validity to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof."₁₂

The long war with the Hapsburg Empire that began at the time of the Spanish Armada contributed to an upsurge of national sentiment. Faith in the English militia was vindicated as free men had held their own against the massive, professional standing armies of the Spanish King. Englishmen came to believe the militia was the best security for their country and their liberties.

At the death of Elizabeth I in 1603, King James VI of Scotland ascended the English throne as James I. The advent of the House of Stuart marked the beginning of a cen