Origins of the Bill of Rights
by Leonard W. Levy
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the
local law library or purchase the book at Amazon.com
Book Review & Chapter 6 "Right to Keep and Bear Arms" excerpt.
Origins of the Bill of Rights by Pulitzer Prize winning author and experienced constitutional scholar Leonard W. Levy is both well researched and presented in a readable format. Levy does not hesitate to express his personal views and he provides ample historical documentation to back up his learned opinions without relying on other peoples' work. While I don't agree with all of Levy's conclusions, it is good to see that the Bill of Rights stirs detailed analysis more than 200 years later.
In the sample chapter provided below regarding the Second Amendment and the right to keep and bear arms, Levy's straightforward, common sense approach to each of the Bill of Rights and all of the protections within them is readily apparent.
Mr. Levy's position that the Second Amendment is an individual right was presented quite boldly as well as soundly. He even criticized Laurence Tribe, the American Civil Liberties Union (ACLU) and the American Bar Association (ABA) for not being more supportive of this interpretation. It takes guts to attack Prof. Tribe, who also believes that the Second Amendment is an individual right but Tribe fails to define any limitations on violations of that right.
To his credit, Mr. Levy has been proven correct in both the initial District Court Emerson decision and the Fifth Circuit Emerson appeal decision that the Second Amendment is, in fact, an individual right for law-abiding citizens. Mr. Levy's book is also mentioned in an article about the Emerson case in The Weekly Standard, on 06/25/01.
There are only a few items I would really like to see changed, as honest people can disagree in thier personal conclusions. But in future editions, I hope that Mr. Levy will expand Origins to include chapters on both the Third and Tenth Amendments, although the Tenth is briefly mentioned in my paperback edition. And in his chapter on the Second Amendment below, I wish he had taken an additional swipe at the "collective" rights groups. For example, it is highly likely that if the government, ACLU, ABA as well as others treated the Second Amendment with proper respect, then the private militias he mentions would likely cease to exist. But these are minor issues at most, and does not detract from the materials presented.
I fully recommend Origins of the Bill of Rights for everyone researching the Bill of Rights or improving their knowledge of our constitutional heritage. See the quality of his work in the chapter excerpted below. Origins is a great edition of renowned historian Levy's collection of 36 authored books.
Origins of the Bill of Rights: Chapter Six
by Leonard W. Levy
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CHAPTER SIX
The Right to Keep and Bear Arms
THE Second Amendment is the only provision of the Bill of Rights that has a preamble. The amendment states: "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." Does the amendment vest a personal right to keep and bear arms? If it had no preamble it would undoubtedly vest such a right. But the preamble is present, and it creates problems about the amendment's meaning. Some scholars mistakenly believe that the function of the preamble is to restrict the keeping and bearing of arms to members of the militia. If that were so, the preamble signifies that the amendment refers to a collective right of the people rather than a personal right of individuals. But the amendment does protect individuals.
The theory that the amendment vests only a collective right to bear arms interprets the Second Amendment as if it protects the power of the states to maintain militias. Of course, the collective right also supports the powers of the national government, for Congress has the authority to provide for the calling forth of the militia to execute the laws of the Union. Moreover, Congress has the power to provide for organizing, arming, and disciplining the [Page 134] militia, while the president is commander-in-chief of the militia of the states when called "into the actual Service of the United States." Nevertheless, a substantial scholarly literature maintains that those militias exist, at least in part, as a shield against tyranny by the national government. That notion is bizarre, even loony, in character; the Constitution does not authorize the state militias to make war against the national government. However, a right to insurrection theoretically exists to correct intolerable and systematic abuses. Americans embrace the doctrine that a right of revolution is a natural right; some state constitutions even endorse that right. The Constitution nevertheless brands as treason overt acts or the levying of war against the United States. Militia members do not possess firearms for the purpose of committing treason, not even under the collective right theory of the Second Amendment.
According to the collective right theory, militia members may bear arms, but the possession of firearms by persons other than the police or military has no constitutional warrant. The collective right suggests, too, that the maintenance of militias is the prime reason for constitutionally allowing an armed public. Under this antiquated view of the Second Amendment, individuals have a right to bear arms only so that they may serve in the militia. Many influential authorities, including the American Bar Association and the American Civil Liberties Union, believe that the amendment does not vest a personal right or, rather, that it endorses a collective right. As the President's Commission on Law Enforcement and Administration of Justice declared in 1967, "The U.S. Supreme Court and lower Federal courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militias and not as a guarantee of an individual's right to keep or carry firearms."
Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing [Page 135] arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status in the Bill of Rights. The "right" to be a soldier does not make much sense. Life in the military is dangerous and lonely, and a constitutionally protected claim or entitlement to serve in uniform does not have to exist in order for individuals to enlist if they so choose. Moreover, the right to bear arms does not necessarily have a military connotation, because Pennsylvania, whose constitution of 1776 first used the phrase "the right to bear arms," did not even have a state militia. In Pennsylvania, therefore, the right to bear arms was devoid of military significance. Moreover, such significance need not necessarily be inferred even with respect to states that had militias. Bearing arms could mean having arms. Indeed, Blackstone's Commentaries spoke expressly of the "right to have arms." An individual could bear arms without being a soldier or militiaman.
The right to bear arms is by no means unlimited. Public regulation may specify the kinds of weapons that are lawful and the conditions under which those weapons may be kept; but no regulation may subvert the right itself. The very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause. Rather the right is an independent one, altogether separate from the maintenance of a militia. Militias were possible only because the people were armed and possessed the right to be armed. The right does not depend on whether militias exist.
To say that the Supreme Court does not endorse a personal right to bear arms misleads, although the Court has a restrictive view of the Second Amendment. In 1939, in United States v. Miller, the Court asserted an interpretation that does not fully endorse the right to keep and bear arms and falls short of fulfilling [Page 136] the intentions of the amendment's Framers. The Court ruled that individuals may justify reliance on the amendment in keeping only such arms as a member of a militia might use¾shotguns, rifles, and handguns, but not a short-barreled or sawed-off shotgun (under eighteen inches in length), a machine gun, a bazooka, a cannon, or assault rifles. As a G.I. in World War II, I can recall having to qualify on a variety of weapons, including short-barreled shotguns; the Court was not well informed on government-issued weapons. And the leading text writer on constitutional law, Laurence Tribe, has wrongly endorsed the Court's 1939 decision as a correct interpretation of the Second Amendment.
The right to have arms is an inheritance from England, as are so many American rights. In 1689, when England adopted its Bill of Rights, which endorsed the right to bear arms, that right was already centuries old. In the twelfth century Henry II had obligated all freemen to possess certain arms, and in the next century Henry III required every subject aged fifteen to fifty, including even landless farmers, to own a weapon other than a knife. Crown officers periodically inspected subjects to be certain that they were properly armed. The reason for this requirement was that in the absence of a regular army and a police force, which was not established until 1829, every man had to do his duty at watch and ward, standing guard by day and night in order to confront and capture suspicious persons. Every subject also had an obligation to protect the king's peace and assist in the suppression of riots. In the event of a crime, every man had to join in the "hue and cry"¾summoning aid and joining the pursuit of anyone who resisted arrest or escaped from custody.
In 1671 Parliament for the first time enacted a statute that deprived almost all Englishmen of the right to have arms. The new measure was a game act that so steeply raised the property qualifications on the right to hunt that possession of firearms became illegal except for the wealthy few. Charles II undertook further [Page 137] measures to disarm his Whig opposition, and in 1686 his successor, James II, favored Catholic subjects and infuriated Protestants by banning their firearms. Royal attempts to control weapons convinced Englishmen that they must have a right to possess firearms. As a result, they resolved to take steps necessary to ensure their right to keep and bear arms. The gentry were in the vanguard of the movement for that right. The martyr Algernon Sydney stated a cliche' when declaring that "swords were given to men that none might be slaves, but such as know not how to use them." So, too, political theorists John Trenchard and Walter Moyle believed that the surest way to preserve the liberties of the people is to arm them.
In 1689 the Glorious Revolution deposed James II and installed as his successor William of Orange, who pledged to protect the right of Protestants to have their firearms. Parliament demanded that protection for individuals by initially recommending: "It is necessary for the publick Safety, that the Subjects which are Protestants, should provide and keep Arms for their common Defence. And that the Arms which have been seized, and taken from them, be restored." A revised version more concisely recommended: "That the Subjects, which are Protestants, may provide and keep Arms, for their common Defence." The final version, which became law, stated: "That the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law." England, incidentally, was about 98 percent Protestant. The qualification concerning what the law allowed was intended to prevent the king from ever again disarming subjects, because Parliament determined what was allowed by law. Parliament had made clear the fact that the right belonged to individuals.
On the eve of the American Revolution, English authorities reaffirmed the right of individuals to have firearms. Blackstone's Commentaries, the work most frequently cited by Americans, stated [Page 138] that the right "to have" arms was indispensable "to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and, private property." James Burgh, whose Political Disquisitions of 1774 was probably more influential in America than John Locke's work, wrote most elaborately about the right to be armed. More than one hundred pages of Burgh's two-volume work focus on the history and values of an armed public in preference to a standing army. He spoke in the accustomed hyperbole when declaring that subjects without arms were no better off than slaves. "A militia-man," he observed, "is a free citizen; a soldier, a slave for life." He quoted Andrew Fletcher, the Scottish Whig, when arguing that ownership of firearms distinguished a free individual from a slave; arms, he wrote, "are the only true badges of liberty." Burgh explicitly supported the right of Americans to be armed in order to preserve their freedoms.
In 1780 the recorder of London, a judge who was the mayor's legal adviser, responded authoritatively to a query from a military group asking for his legal opinion on their right to keep firearms and parade with them. He declared:
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 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 most clearly established by the authority of judicial decisions and ancient acts of parliament, as well as by reason and common sense. [emphasis added]
In 1782 Granville Sharp, who also supported the American cause, denied the loyalty of any Englishman who failed to defend [Page 139] the right of individuals to have arms. Richard Price, another pro-American Englishman, writing in 1784, expressed his belief that the prevalence of arms in America accounted for its strength. "Free states," he wrote, "ought to be bodies of armed citizens, well regulated and well disciplined, and always ready to turn out, when properly called upon, to execute the law, quell riots, and to keep the peace. Such, if I am rightly informed, are the citizens of America." Price admired the "hardy yeomanry" of America, "all nearly on a level¾trained to arms,¾instructed in their rights." The right of Englishmen to keep and bear arms was treasured. It was not a pro forma right; it was both an individual and a collective one.
Colonial charters and enactments guaranteed English settlers in the New World the rights of Englishmen, indeed, "all the rights of natural subjects, as if born and abiding in England." If the charter of a colony neglected to make such a provision, colonial laws like the Massachusetts Body of Liberties of 1641 remedied the deficiency. In 1720 Richard West, counsel for the Board of Trade, said that the English common law and all statutes enacted before the settlement of a colony were part of its law, and he added, "Let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear." That law included, of course, the English Bill of Rights of 1689, which protected the right of Protestants to have weapons.
New World conditions also encouraged the keeping and use of firearms. Hunting was necessary for meat. Strangers could be dangerous. In some areas, foreign enemies, especially the Spanish and French, might attack frontiers, and Indians presented another widespread menace, requiring colonists to be armed.
Every American colony enacted laws that necessitated both militia service and guard duty by all able-bodied men. Excepting conscientious objectors, slaves, and clergymen, all men aged sixteen to fifty or sixty (depending on the colony) were subject to service in the militia. Men who were disabled were obligated to [Page 140] hire substitutes in their places. Several colonies required not only those eligible for militia service but all men, including indentured servants, to provide firearms for themselves and for members of their households. Several towns and a few colonies required subjects to go about armed even on the way to church. Internal dangers and the possibility of insurrection, as well as foreign and Indian dangers, explain such legislation.
After Bacon's Rebellion of 1676 in Virginia, the royal governor, Sir William Berkeley complained, "How miserable that man is who governs a people when six parts of seaven [seven] at least are Poore Endebted Discontented and Armed [sic]." The right to have arms was so basic that regulation seeking to control it acknowledged it. For example, an act of the Virginia legislature noted that liberty had been granted to "all persons to carry their arms wheresoever they go." Because that liberty seemed "prejudicial to the peace," the legislature amended the statute, but the amendment simply showed how entrenched was the right to bear arms. The new act penalized assemblages of five or more armed men, and the governor conceded the right of an individual to keep and bear arms for his own protection and use.
Arms were common. An English minister, on the eve of the American Revolution, wrote: "Rifles, infinitely better than those imported, are daily made in many places in Pennsylvania, and all the gunsmiths everywhere constantly employed. In this country, my lord, boys, as soon as they can discharge a gun, frequently exercise themselves therewith, some a fowling and others a hunting. The great quantities of game, the many kinds, and the great privileges of killing making the Americans the best marksmen in the world." He added that a thousand of these American riflemen "would cut to pieces ten thousand of your best troops." In 1768, when the British reinforced their military in Boston, A Journal of the Times, a newspaper founded to popularize American grievances, urged Americans to retain their arms and reminded them [Page 141] that the English Bill of Rights had recognized the "privilege of possessing arms." The paper declared, "It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence." So, too, John Adams quoted Serjeant-at-Law William Hawkins's Pleas of the Crown, a widely used and authoritative treatise of 1716 and often reprinted, regarding the right: "Here every private person is authorized to arm himself" for his own defense. Similarly, Samuel Adams quoted Blackstone on the personal right to bear arms.
Americans abhorred large standing armies. During the controversy with Britain, James Wilson condemned George III's use of the military in the colonies as part of a plan "of reducing the colonies to slavery." Jefferson scathed the king for having used "large bodies of armed forces" to carry out his policies, and in the Declaration of Independence, Jefferson indicted him for having kept "among us in time of peace, standing armies without the consent of our legislatures." Jefferson also proposed that his state constitution should stipulate, "No freeman shall be debarred the use of arms." Like Washington and others of his class, Jefferson had a large collection of rifles and pistols; he was an amateur gunsmith who invented interchangeable firearms parts. In a letter to a fifteen-year-old nephew, Jefferson praised the importance of "the gun" as contributing to "boldness, enterprise and independence of mind," concluding: "Let your gun therefore be the constant companion of your walks." Sentiments like these explain the intense American reaction to General Thomas Gage's appropriation of private arms in Boston. The Revolution began with the British effort to seize the arms and ammunition in Lexington, Massachusetts, and the gunpowder stored in Williamsburg, Virginia.
The Articles of Confederation (1777), our first national constitution, provided that every colony shall always keep up a well-regulated and disciplined militia but said nothing about the individual's right to be armed for his own purposes. Any such [Page 142] protection would therefore have to derive from state law. Several state constitutions provided for militias, but the Massachusetts constitution of 1780 protected the right "to keep and bear arms." That could have included a personal right as well as a right to bear arms to provide for the common defense. But only the Pennsylvania constitution of 1776 referred to the people's right to bear arms "for the defence of themselves." That reference to the people's right did not mean the people collectively or society at large. Both the First and Fourth Amendments, on the rights of free expression and freedom from unreasonable searches and seizures, refer to the people's right, meaning the right of individuals. Free speech is a personal right, not a collective one. So, too, Pennsylvania's reference to the right to bear arms meant that the right was a personal right. Pennsylvania, which was the first to employ the phrase "the right to bear arms," did not even have a militia clause in its constitution. Consequently, the right had to belong to individuals. The Pennsylvania provision rested cheek-by-jowl with the rights to free speech and press, also personal rights. Vermont a year later, in 1777, copied Pennsylvania's language in its constitution.
Virginia's Declaration of Rights of 1776, which was quite different, stated: "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; 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." This provision notably lacked endorsement of an individual's right to possess arms, though Virginians were in fact armed and furnished their own weapons when serving in the militia. Moreover, the language of the Virginia provision allowed for the interpretation that the right to bear arms was connected with the maintenance of the militia. North Carolina constitutionally safeguarded the right to bear arms for the purpose of defending the state, while Massachusetts offered that protection on behalf of "the common defense." [Page 143]
Massachusetts in 1780 was the first to use the phrase "to keep and bear arms." John Adams was responsible for it; in his monumental two-volume defense of the constitutions of the states, he argued that arms in the hands of individual citizens are subject to their discretion to defend themselves. The town of Northampton in Massachusetts protected the individual's right when it resolved that the people have a right to keep and bear arms for their own defense as well as for the common defense. Other Massachusetts towns had similar provisions. Maryland failed to mention the right to bear arms but provided for a well-regulated militia in its constitution. That language allowed for the interpretation that the right to bear arms was connected with the maintenance of a militia. The other states had no declaration of rights until after the Revolution.
During the debate over the ratification of the Constitution, Anti-Federalists, who opposed ratification of the Constitution, maintained that Congress might fail to provide weapons for the militias, a strange argument in view of the fact that individual members of the militia possessed their own weapons. When, for example, Congress enacted the Uniform Militia Act of 1792, it referred to the militias as consisting of "every free able-bodied male citizen of the respective states" aged eighteen to forty-five, and it added that every militia member should provide his own arms: "That every citizen so enrolled . . . shall . . . provide himself with a good musket or firelock, a sufficient bayonet, belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges . . . each cartridge to contain a proper quantity of powder and ball."
During the controversy over the ratification of the Constitution, however, Anti-Federalists expressed concern that Congress might neglect the militias. The minority at the Pennsylvania ratifying convention, drawing largely on their own state's constitution, proposed various amendments that constituted a bill of rights, one of which spoke to the issue of an individual's having arms: "That the people have a right to bear arms for the defense of [Page 144] themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals." The remainder of the provision repudiated standing armies and demanded civil control over the military. Richard Henry Lee of Virginia wrote elaborately on the same theme in nationally circulated essays.
The proposal of the Pennsylvania minority expressed a common sentiment shared by Federalists as well. In Massachusetts, for example, Theodore Sedgwick argued that "a nation of freemen who know how to prize liberty and who have arms in their hands" could not be subdued. Samuel Adams urged that the Constitution should expressly provide that it could never be construed "to prevent the people from keeping their own arms." Lexicographer Noah Webster agreed, observing that the national government would not be able to enforce unjust laws because the "whole body of the people are armed" and could defeat any federal army. The right to bear arms has frequently been associated with romantic notions like Webster's. Still, the belief was widespread that the right of individuals to be armed was associated with personal liberties and the existence of a free society. As Zachariah Johnson informed the Virginia ratifying convention, the people's liberties were safe because they "are not to be disarmed of their weapons. They are left in full possession of them." Similarly John Dewitt, an Anti-Federalist writer, argued that a well-regulated militia "composed of the yeomanry of the country have ever been considered as the bulwark of a free people"¾a characteristic American idea of English origin. Blackstone, for example, had earlier voiced the thought that tyranny had no chance where the people are armed.
When James Madison in 1789 proposed to the First Congress the amendments to the Constitution that became the Bill of Rights, he included one that drew on his own state's constitution: "The [Page 145] right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." Madison did not make the right to bear arms dependent on serving in a militia. In his notes for the speech in which he urged Congress to recommend constitutional amendments, he wrote of those amendrnents, "They related 1st to private rights," and he referred to the English Declaration of Rights, which protected the right of individual Protestant subjects to have arms. In his personal correspondence Madison referred to his proposals as "guards for private rights." The recommendation that he made concerning individual ownership of arms sprang from his belief that "the greater danger to liberty is from large standing armies." In The Federalist, No. 46, Madison alluded to "the advantage of being armed, which the Americans possess over the people of almost every other nation." Elsewhere, he said, rulers feared having an armed public.
Madison proposed to interlineate his amendments at the appropriate points in the Constitution, for example, inserting the right to bear arms not next to the militia clause but, rather, in "article 1st, Section 9, between clauses 3 and 4"¾in other words, immediately after the guarantee of the writ of habeas corpus and the prohibition of bills of attainder, which respected personal liberty. He did not recommend his proposed amendments as a separate bill of rights, though he spoke of a "bill of rights" when referring to the amendments collectively.
Roger Sherman of Connecticut believed that amendments were unnecessary and opposed interspersing them within the main body of the Constitution because that would leave the mistaken impression that the Framers had signed a document that included provisions not of their composition. He and some other members of the House thought that the amendments should be lumped at the end of the document, and they also believed that [Page 146] the matter of form was so trifling that the House should not squander its time debating the placement of the amendments. Sherman therefore urged that the amendments should be appended as a supplement to the Constitution¾and thus the Bill of Rights achieved its significant collective form, with the right to bear arms as the Second Amendment ratified by the states.
The Framers also recognized that the states' neglect of their militias required a dependable alternative, a professional army but one kept under strict control. Thus, the Constitution authorizes Congress to raise and support military forces, though no appropriation for them may last more than two years, and civil control over them is assured because the president is commander-in-chief and Congress has not only responsibility for the governance of the military but also the power to declare war. So, too, Congress provides for organizing, maintaining, and training the military, although the states retain control over the appointment of its officers. Madison expressed the Framers' view when he supported national control over state militias on the theory that only they, if effective, could make possible the avoidance of a standing army or minimize its size. George Mason agreed. Like Jefferson, he argued that to keep the army small the state militias should be well prepared for public defense under centralized federal authority. Thus, Congress was empowered to summon the militias "to put the laws of the Union in execution."
Soon after Madison had recommended constitutional amendments, Tench Coxe, a Federalist partisan, published an influential essay on proposed amendments to the Constitution. In the leading Philadelphia newspaper, he wrote that because civil rulers might be tyrannical and the military might abuse its powers, a bill of rights would be helpful. Coxe knew that one of Madison's recommendations was an amendment that authorized the right of the people to keep and bear "their private arms," and Coxe argued that the "powers of the sword are in the hands of the yeomanry of [Page 147] America," whom he identified as the members of the state militias. "Who are the militia?" he asked, and responded that they were "ourselves." The sword was not in the hands of government, state or federal, but "in the hands of the people." All adult males were required to own arms and serve in the militia, which, as Elbridge Gerry of Massachusetts stated, existed "to prevent the establishment of a standing army, the bane of liberty."
Tench Coxe's reference to "the people" did not refer to them in a collective sense or as society at large. "The people" was a term commonly used to mean the right of individuals, and as indicated above, the First Amendment protects the right of the people to freedom of expression and the Fourth protects the right of the people to be free from unreasonable searches and seizures; and each clearly refers to a personal right.
Newspapers throughout the nation reprinted Coxe's essay. Sending a copy of it to Madison, Coxe wrote that he thought his remarks might have a good effect on public opinion. Madison, who agreed, expressed indebtedness for Coxe's cooperation. Federalists advanced arguments like Coxe's in part to claim that no bill of rights was necessary¾that is, so long as the people were armed, no government could limit their freedom. Anti-Federalists nevertheless insisted that the Constitution should not be ratified unless its advocates pledged that the new government would present to the states amendments consisting of a bill of rights. The AntiFederalists felt apprehensive because the Constitution provided for a standing army, causing them to demand that one amendment to it should stipulate that every man had a right to be armed. Patrick Henry argued in the Virginia ratifying convention that the only defense of the people against an army controlled by Congress was the militia. "The great object," he thundered, "is that every man be armed. . . . Every one who is able may have a gun." Henry appeared not to be arguing here for the right of individuals to be armed for their own protection, because in context his words [Page 148] showed that he was thinking of members of the militia. Nevertheless, as a newspaper in Charleston, South Carolina, observed, a well-regulated militia is "composed of the freeholders, citizen and husbandman, who take up arms to preserve their property as individuals, their rights as freemen" (emphasis added).
George Mason at the Virginia ratifying convention reminded his listeners that the British had sought to disarm the Americans as "an effectual way to enslave them," and to this end had neglected the militias. "Who are the militia?" he asked and, like both Coxe and Henry, replied, "They consist now of the whole people." In response to complaints such as those made by the Pennsylvania minority, Federalist partisans of ratification insisted that under the proposed Constitution the people could not be disarmed.
Of the states that recommended amendments to the Constitution, four urged an amendment guaranteeing the right of individuals to bear arms. New Hampshire, the ninth state to ratify, was the first to make that recommendation with a proposal that said: "Congress shall never disarm any Citizen, unless such as are or have been in Actual Rebellion." New York followed suit with the proposition that the people "have a right to keep and bear arms" and that a well-regulated militia, including "the body of the people capable of bearing arms" is the "proper" defense of a free state. Two other states, Rhode Island and North Carolina, used similar language in recommending amendments to the Constitution.
The second amendment in effect prevents the national government from destroying the militias of the states and preserves a personal right that is centuries old. Joel Barlow, the Connecticut wit and writer, in 1792 sagely declared that a tyrant disarms his subjects to "degrade and oppress" them, knowing that to be unarmed "palsies the hand and brutalizes the mind," with the result that people "lose the power of protecting themselves." But arms privately held can be dangerous to society. President George Washington once reminded Congress that "a free people ought [Page 149] not only be armed but disciplined." He meant that the militias of his time had to be under military authority or, in the frequently used phrase, should be "a well-regulated" militia. However, we no longer depend on militias, a fact that in some respects makes the right to keep and bear arms anachronistic. An armed public is not the means of keeping a democratic government responsible and sensitive to the needs of the people. As the Supreme Court said in 1951, in Dennis v. United States: "That it is within the power of Congress to protect the government of the United States from armed rebellion is a proposition which requires little discussion." Whatever hypothetical value there might be, the Court said, in the notion that a "right" against revolution exists against dictatorial government "is without force where the existing structure of the government provides for peaceful and orderly change." The Court added, "We reject any principle of government helplessness in the face of preparations for revolution, which principle, carried to its logical conclusion, must lead to anarchy."
The right to keep and bear arms still enables citizens to protect themselves against law breakers, but it is a feckless means of opposing a legitimate government. The so-called militias of today that consist of small private armies of self-styled superpatriots are entitled to their firearms but deceive themselves in thinking they can withstand the United States Army. The Second Amendment as they interpret it feeds their dangerous illusions. Even so, the origins of the amendment show that the right to keep and bear arms has an illustrious history connected with freedom even if it is a right that must be regulated.