Volume 5 Fall 1993 Number 1 Journal on Firearms and Public Policy The Journal on Firearms and Public Policy is the official publication of the Center for the Study of Firearms and Public Policy of the Second Amendment Foundation. Editor Associate Editors Julianne Versnel Gottlieb John Barnett Women & Guns Magazine Second Amendment Foundation Editorial Assistant Harry J. Mills Kristen Joy Smith Second Amendment Foundation Merril Press Paul Williams Timothy Sekerak, J.D. Citizens Committee for the Right Citizens Committee for the Right to Keep and Bear Arms to Keep and Bear Arms David Bordua, Ph.D. Gary Kleck, Ph.D. David I. Caplan, Ph.D., J.D. Edward F. Leddy, Ph.D. Brendan Furnish, Ph.D. Joseph P. Tartaro Alan M. Gottlieb William Tonso, Ph.D.. Don B. Kates, Jr., J.D. James K. Whisker, Ph.D. JOURNAL POLICY The Second Amendment Foundation sponsors this journal to encourage objective research. The Foundation invites submission of research papers of scholarly quality from a variety of disciplines, regardless of whether their conclusions support the Foundation's positions on controversial issues. Manuscripts should be sent in duplicate to: Center for the Study on Firearms and Public Policy, A Division of the Second Amendment Foundation, 12500 N.E. Tenth Place, Bellevue, Washington 98005. Authors using computers should, if possible, submit on diskette in IBM format. This publication is copyrighted © 1993 by the Second Amendment Foundation. All rights reserved. No part of this publication may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without written permission except in the case of brief quotations embodied in critical articles and reviews. The Second Amendment Foundation is a non-profit educational foundation dedicated to promoting a better understanding of our Constitutional heritage to privately own and possess firearms. For more information about Foundation activities, write to: Second Amendment Foundation, James Madison Building; 12500 N.E. Tenth Place; Bellevue, Washington 98005. Telephone number is (206)454-7012. Additional copies of this publication may be ordered at $10.00 each. This publication is distributed to academia and the book trade by Merril Press, P.O. Box 1682, Bellevue, Washington 98009. Electronic Edition Published and Distributed with permission of the Second Amendment Foundation By Lektra Press PO Box 1120, Merrimack, NH 03054-1120 info@lektra.com R. Craig Peterson, Publisher (603) 672-8333 in co-operation with Mainstream Electronic Information Services. CONTENTS Articles in this issue of the Journal on Firearms and Public Policy are based on some of the papers presented at a Second Amendment Symposium held at University of Arizona College of Law in commemoration of the Bicentennial of the Bill of Rights. This program was chaired by Sandra S. Froman, Attorney, Snell & Wilmer and Elizabeth Hoffman, Associate Dean and Professor of Economics, Karl Eller Graduate School of Management at the University of Arizona. Funding for the Second Amendment Symposium was provided by a grant from the Second Amendment Foundation, through private donations to the University of Arizona Law College Fund, and by a grant from the Arizona Commission on the Bicentennial of the United States Constitution. Special thanks go to Mrs. Caroline Roberts for her generous support of this program. The Right to Keep and Bear Arms Under the Second and Fourteenth Amendments: the Framers' Intent and Supreme Court Jurisprudence Stephen P. Halbrook page 7 The "Assault Weapon"Panic David Kopel Page 29 The Second Amendment and the Historiography of the Bill of Rights David T. Hardy page 67 The Role of the Militia in the Development of the Englishman's Right to Be Armed _ Clarifying the Legacy Joyce Lee Malcolm page 139 The Right to Keep and Bear Arms in State Bills of Rights and Judicial Interpretation Robert Dowlut page 153 The Right to Keep and Bear Arms under the Second and Fourteenth Amendments The Framers' Intent and Supreme Court Jurisprudence by Stephen P. Halbrook Stephen P. Halbrook is a practicing attorney in Fairfax, Virginia who received his Ph.D. in philosophy from Florida State University in 1972, and his J.D. From Georgetown University Law Center in 1978. He is the author of THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (University of New Mexico Press 1984) and a RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS OF RIGHTS AND CONSTITUTIONAL GUARANTEES (Greenwood Press 1989). He has authored numerous law review articles on the Second Amendment and a chapter in THE RIGHT TO KEEP AND BEAR ARMS, Report of the Subcommittee on the Constitution, Senate Committee on the Judiciary (1982). He was lead counsel in National Rifle Association v. Brady, 914 F.2d 475 (4th Cir. 1990); Fresno Rifle and Pistol Club, Inc. v Van de Kamp, 746 F.Supp. 1415 (E.D. Cal. 1990), notice of appeal filed March 11, 1991 (9th Cir.); and Thompson/Center Arms Co. v. United States, 924 F.2d 1041 (Fed. Cir. 1991), cert. granted U.S. (Oct. 7, 1991). The Second Amendment to the United States Constitution provides: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Fourteenth Amendment provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The following analyzes the jurisprudence of the United States Supreme Court on the Second and Fourteenth Amendments. In addition to case law, this paper sets forth the intent of the framers of those respective amendments. It concerns two fundamental issues: First, to what extent does the Second Amendment, which provides protection from federal infringement, guarantee the individual right to keep and bear arms? Second, does the Fourteenth Amendment protect this right from state infringement? I. THE INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS UNDER THE SECOND AMENDMENT United States v. Verdugo-Urquidez, 494 U.S.___, 108 L.Ed.2d 222, 110 S.Ct. 1056 (1990) makes clear that the Second Amendment protects the rights of all law-abiding persons. The Court stated: "The people" seems to have been a term of art employed in select parts of the Constitution.... The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . abridging . . . the right of the people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second year by the People of the several States")(emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 108 L.Ed.2d at 232-33 (emphasis added in part.) Concurring, Justice Stevens added that "aliens who are lawfully present in the United States are among those 'people' who are entitled to the protection of the Bill of Rights .... " Id. at 241. In his dissent, Justice Brennan noted that "the term 'the people' is better understood as a rhetorical counterpoint 'to the government,' such that rights that were reserved to 'the people' were to protect all those subject to 'the government' . . . 'The people' are 'the governed."' Id. at 247. The above decision reversed a split decision by the Ninth Circuit, 856 F.2d 1214 (9th Cir. 1988), thereby upholding the dissenting views of Circuit Judge Wallace. Judge Wallace stated: The fourth amendment extends its guarantees to "the people," meaning "the people of the United States." Elsewhere in the Bill of Rights, the Framers sought to constrain the reach of the federal government in the name of "the people." Besides the fourth amendment, the name of "the people" is specifically invoked in the first, second, ninth, and tenth amendments. Presumably, "the people" identified in each amendment is coextensive with "the people" cited in the above amendments. No contrary indication appears in either the text or history of the Constitution. Id. at 1239. (Emphasis added.) Similarly, Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) considered the meaning of "the people" and denied Bill of Rights protection to enemy aliens because otherwise: Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. As is clear, the rights to speech and bearing arms are assumed to be guaranteed to the citizens. After quoting the First Amendment, the Court has referred to "the equally unqualified command of the Second Amendment: 'the right of the people to keep and bear arms shall not be infringed."' Konigsberq v. State Bar of California, 366 U.S. 36, 49 n.10 (1961). As stated by the Court: This constitutional protection must not be interpreted in a hostile or niggardly spirit .... As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution. 1 In United States v. Miller, 307 U.S. 174 (1939), the Court avoided determining whether a short barrel shotgun may be taxed under the National Firearms Act consistent with the Second Amendment, as no evidence in the record addressed whether such a shotgun was, or was not, an ordinary militia arm. The Supreme Court remanded the case for fact-finding based on the following: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Hump. 154, 158. 307 U.S. at 178 (emphasis added). The Miller court did not suggest that the possessor must be a member of the militia or National Guard, asking only whether the arm could have militia use. The individual character of the right protected by the Second Amendment went unquestioned. The Aymette opinion stated on the page cited above by the U.S. Supreme Court: "the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments on their rights, etc." 2 Hump. (21 Tenn.) 154, 158 (1840). Referring to the militia clause of the Constitution, the Supreme Court stated that "to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made." 307 U.S. at 178. The Court then noted that "the Militia comprised all males physically capable of acting in concert for the common defense" and that "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Id. at 179 (emphasis added). The Miller court noted that most states "have adopted provisions touching the right to keep and bear arms" but that differences in language meant variations in "the scope of the right guaranteed." 307 U.S. at 182. State precedents cited by the court are divided mainly over whether the respective state guarantees protect all arms or only militia-type arms.2 Miller also cites approvingly the commentaries of Joseph Story and Thomas M. Cooley. 307 U.S. at 182 n.3. Justice Story stated: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."3 Judge Cooley stated: Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms .... The alternative to a standing army is 'a well-regulated militia'; but this cannot exist unless the people are trained to bearing arms.4 Lewis v. United States, 445 U.S. 55 (1980) dealt with the federal prohibition on possession of firearms by felons. The Court noted: "These legislative restrictions [i.e., a felon may not receive a firearm in commerce] on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Id. at 65 n.8 (emphasis added.) Since "a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm"_including the exercise of other civil liberties, and may even deprive a felon of life itself_felons have no fundamental right to keep and bear arms. Id. at 66. Lewis explicitly reaffirmed the Miller rule, and removed any uncertainty, that the Second Amendment protects possession of "a firearm" with a militia nexus, and does not merely protect a person with a militia nexus. Id. at 65 n.8. Lewis did not say that the right to keep and bear arms is not a fundamental right of law-abiding citizens.5 A "fundamental right" includes a right "explicitly . . . guaranteed by the Constitution." San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 35 (1973). Until recently, no law has ever been passed which banned possession of ordinary firearms by law-abiding citizens. There is dictum about the Second Amendment from cases concerning felons. E.g., United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974)(court appointed attorney made preposterous argument that Second Amendment protects felon's purchase of firearm; unsupported dictum about "a collective right"). Other cases presuppose an individual right.6 Only one local ordinance banning handgun possession_with exemptions for collectors and storage at clubs-has ever been the subject of a federal appellate decision related to the Second Amendment. Quilici v. Villaqe of Morton Grove, 695 F.2d 261 (7th Cir. 1982)(2-1 opinion), cert. denied 464 U.S. 863 (1983). Yet the majority in this case decided that the Second Amendment does not apply to the states, and did not decide that the Second Amendment does not recognize an individual right. Instead, the court noted the Miller holding that "the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia."7 In 1989, the State of California banned rifles with military model designations, and declared an intent to allow firearms for sporting use only. California Penal Code paragraph 12275.5, 12276. Such models as are semiautomatic rifles pass the Miller test because they are appropriate for militia use, even though the Armed Forces only use fully automatic machineguns.8 The use of these rifles in the federal Civilian Marksmanship Program demonstrates their suitability for militia purposes. Tanks, rockets, and nuclear weapons are not protected by the Second Amendment. The Second Amendment protects only arms which one may "keep" and "bear." "The term 'arms' as used by the drafters of the constitutions probably was intended to include those weapons used by settlers for both personal and military defense. . . The term 'arms' would not have included cannons nor other heavy ordnance not kept by militiamen or private citizens." State v. Kessler, 289 Or. 359, 368, 614 P.2d 94, 98 (1980).9 Semiautomatic firearms have been held as constitutionally guaranteed "arms" under state provisions which were derived from the Second Amendment.10 In the Firearms Owners' Protection Act of 1986, Congress interpreted the Second Amendment as guaranteeing an individual right of persons to acquire and keep rifles, pistols, and shotguns. It recognized "the rights of citizens to keep and bear arms under the second amendment to the United States Constitution"11 as a reason to deregulate substantially the purchase, sale and ownership of firearms.12 paragraph 1, P.L. 99-308, 100 Stat. 449 (1986). Relying on to its enforcement power under the Fourteenth Amendment, Congress preempted state laws which disallowed transportation of firearms.13 In sum, it is clear that Supreme Court jurisprudence is entirely consistent with an individual rights interpretation of the Second Amendment. II. THE INTENT OF THE FRAMERS OF THE SECOND AMENDMENT The Supreme Court has held that "when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone." Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575, 583-84 n.6 (1983). It is precisely because the framers wanted to promote a well regulated militia composed of the populace at large that they insisted that the people have a right to keep and bear arms. Concern for the militia does not logically negate recognition of the people's right to keep and bear arms. Far from being mutually exclusive, the militia and this right sustain each other. Of the eight state bills of rights adopted before the federal Constitution, four recognized the right of "the people" to bear arms. None of these were contained in a militia clause, nor was the term "bear arms" limited to war usage. For instance, the Pennsylvania Declaration of Rights, Art. XIII (1776) provided: "That the people have a right to bear arms for the defense of themselves, and the state. . . ." In The Federalist No. 46, James Madison alluded to "the advantage of being armed, which the Americans possess over the people of almost every other nation." Madison, Hamilton, and Jay, THE FEDERALIST PAPERS 299 (Arlington House ed. n.d.) Madison continued, "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." Id. Noah Webster, the influential federalist whose name still appears on dictionaries, stated: "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed. . . ." PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 56 (P. Ford ed. 1888). Insisting on a Bill of Rights, Richard Henry Lee wrote that "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them . . " R. Lee, ADDITIONAL LETTERS FROM THE FEDERAL FARMER 170 (1788). The Supreme Court has noted: "The remarks of Richard Henry Lee are typical of the rejoinders of the Antifederalists. . . . The concerns voiced by the Antifederalists led to the adoption of the Bill of Rights. . . ." Minneapolis Star v. Minnesota Corn. of Rev., 460 U.S. 575, 584 (1983). In the Virginia ratifying convention, Patrick Henry argued, "the great object is, that every man be armed. . . . Everyone who is able may have a gun." 3 Elliot, DEBATES IN THE SEVERAL STATE CONVENTIONS 386 (1836). Accordingly, the Virginia convention proposed a declaration of individual rights, including: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state. . . ." Id. at 659. Virginia also proposed an entirely separate body of amendments concerning governmental powers, including: "That each state respectively shall have the power to provide for organizing, arming, and discipline its own militia, whensoever Congress shall omit or neglect to provide for the same." Id. at 660. When James Madison proposed the Bill of Rights in 1789, he wrote that the proposed amendments concerning the press and arms "relate first to private rights." 12 MADISON PAPERS 193-194 (Rutland ed. 1979). Ten days after its introduction, federalist leader Tench Coxe wrote of what became the Second Amendment: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms." Federal Gazette, June 18, 1789, at 2, col. 1 (emphasis added). Madison endorsed Coxe's analysis, which was reprinted without contradiction. See 12 MADISON PAPERS at 239-40, 257 (1979). When the constitutional amendments were being debated in Congress, the state-militia guarantee proposed by the Virginia convention was rejected. JOURNAL OF THE FIRST SESSION OF THE SENATE 75 (1820). Thus, Congress passed the Bill of Rights, which guaranteed "the right of the people to keep and bear arms," and rejected an explicit "power" of "each state" to provide for militias. No court has ever acknowledged awareness of this fact. Through an Orwellian rewriting of history, adherents of an exclusive state militia power appear to claim that the defeated amendment is really what passed in the Second Amendment. The Framers assigned promotion of a well regulated militia as the leading purpose of what is nonetheless the "right of the people to keep and bear arms." One would not expect the Framers to state in a serious political charter a preamble such as "duck hunting being necessary to the recreation of a fun state." St. George Tucker, the first major commentator on the Bill of Rights (New York Times v. Sullivan, 376 U.S. 254, 296-97 (1964)), explained the Second Amendment as follows: "The right of selfdefense is the first law of nature .... Wherever . . . the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." 1 Tucker, BLACKSTONE'S COMMENTARIES(Appendix) 300 (1803). In sum, the Framers clearly intended to protect the individual right to keep and bear arms. III. DOES THE FOURTEENTH AMENDMENT INCORPORATE THE SECOND AMENDMENT? The only mention by the United States Supreme Court of the right to keep and bear arms before the Fourteenth Amendment was passed found the right to be protected from any infringement, including the state slave codes. In the Dred Scott decision, Chief Justice Taney wrote that citizenship "would give to persons of the negro race . . the full liberty of speech . . . and [the right] to keep and carry arms wherever they went." Scott v. Sandford, 60 U.S. 393, 417 (1857). In other words, if blacks were citizens, then the Second Amendment would invalidate state laws which prohibited firearms possession by such citizens. The Fourteenth Amendment was intended to eradicate the black codes, under which "Negroes were not allowed to bear arms or to appear in all public places. . . " Bell v. Maryland, 378 U.S. 226, 247-48 & n.3 (1964) (Douglas, J., concurring). In his concurring opinion in Duncan v. Louisiana, 391 U.S. 145, 166-67 (1968), Justice Black recalled the following words of Senator Jacob M. Howard in introducing the amendment to the Senate in 1866: "The personal rights guaranteed and secured by the first eight amendments of the Constitution; such as . . . the right to keep and bear arms .... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." The Supreme Court has never determined whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement. However, Malloy v. Hogan, 378 U.S. 1, 5 (1964) states: "The Court has not hesitated to re-examine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme.,,14 The same two-thirds of Congress which proposed the Fourteenth Amendment also passed an enactment declaring that the fundamental rights of "personal liberty" and "personal security" include "the constitutional right to bear arms." Freedmen's Bureau Act, paragraph 14, 14 Stat. 176 (July 16, 1866). This Act, and the companion Civil Rights Act of 1866, sought to guarantee the same rights that the Fourteenth Amendment was adopted to protect. No court has ever considered Congress' declaration, contemporaneously with its adoption of the Fourteenth Amendment, that the rights to personal security and personal liberty include the "constitutional right"_i.e., the right based on the Second Amendment_"to bear arms." Until now, this declaration in the Freedmen's Bureau Act has been completely unknown both to scholars and the courts.15 At the beginning of the above session, Senator Sumner presented "a memorial from the colored citizens of the State of South Carolina in convention assembled .... They ask also that they should have the constitutional protection in keeping arms . . ." CONG. GLOBE, 39th Cong., 1st Sess., 337 (Jan. 22, 1866). The Second Amendment was explained as protecting the right "for every man bearing his arms about him and keeping them in his house, his castle, for his own defense." Id. at 371 (Jan. 23, 1866) (remarks of Senator Davis). The Freedmen's Bureau bill would have protected the right of every person "to have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right to bear arms." Id. at 654, 1292. The first bill, including this exact language, passed Congress, but was vetoed by President Johnson. Jones v. Mayer Co., 392 U.S. 409, 423-24, 436 (1968) notes the intimate connection between the above and the adoption of the Fourteenth Amendment. See Bell v. Maryland, 378 U.S. 226, 292-93 (1964) (Goldberg, J., concurring) (tracing Fourteenth Amendment to Civil Rights Act and Freedmen's Bureau bill, and quoting the latter's reference to "full and equal benefit of all laws and proceedings for the security of person and estate"). When reintroduced after the President's veto, and as passed, the Freedmen's Bureau Act protected the "full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms". CONG. GLOBE, 39th Cong., ist Sess., 3412; 14 Stat. 176 (emphasis added). Each and every member of Congress who voted for the Fourteenth Amendment also voted for one or both of the two Freedmen's Bureau bills which recognized the right to bear arms. Every single senator who voted for the Fourteenth Amendment also voted for the recognition of the constitutional right to bear arms in the Freedmen's Bureau bills, S. 60 and H.R. 613. An analysis of the roll call votes reveals that all 33 senators, i.e., 100%, who voted for the Fourteenth Amendment also voted for either S. 60 or H.R. 613.16 Of the 33 who voted for the Fourteenth Amendment, 28 (85%) voted for both S. 60 and H.R. 613. The Senate's override of the Presidential veto passed by 33 to 12 (73%), more than the necessary two-thirds.17 Members of the House cast recorded votes overwhelmingly in favor of the Freedmen's Bureau bills, with recognition of the right to bear arms, on three occasions, and in favor of the Fourteenth Amendment on two occasions.18 The overwhelming majority voted in the affirmative on all five recorded votes_once on S. 60, twice on the Fourteenth Amendment, and twice on H.R. 613. A total of 140 Congressmen voted at least once in favor of the Fourteenth Amendment, and of these 140_i.e., 100%_voted at least once in favor of one of the Freedmen's Bureau bills. Of the 140 Congressman who voted for the Fourteenth Amendment, a total of 120-i.e., 86%_voted for both S. 60 and H.R. 613. The House overrode the President's veto of H.R. 613 by a vote of 104-33, i.e., 76%. Accordingly, to a man, more than two-thirds of members of Congress who voted for the Fourteenth Amendment also voted for the proposition in the Freedmen's Bureau bills that the constitutional right to bear arms is included in the rights of personal liberty and personal security. The Supreme Court has repeatedly found the Fourteenth Amendment to protect from state action the "indefeasible right of personal security, personal liberty and private property . . . ." Griswold v. Connecticut, 381 U.S. 479, 485 n. (1965). "Constitutional provisions for the security of person and property should be liberally construed." Coolidde v. New Hampshire, 403 U.S. 443, 454 (1971).19 The Freedmen's Bureau Act recognized the right to bear arms as a right of every person, not as a state militia power. Indeed, the Act and the Fourteenth Amendment_as well as an act abolishing the Southern state militias_were passed in part to prevent state militias from disarming individuals and hence infringing on the right to keep and bear arms.20 Justice Marshall's opinion in Regents of the Univ. of California v. Bakke, 438 U.S. 265, 397 (1978) states: "The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen's Bureau Act." Justice Marshall concluded that the rights set forth in the Freedmen's Bureau Act were dispositive of Congress' intent in the Fourteenth Amendment. Id. at 398. Thus, over two-thirds of the Congress that passed the Fourteenth Amendment went on record recognizing that "the constitutional right to bear arms" was among the guarantees of personal liberty and personal security to be protected from state infringement. No other provision of the Bill of Rights was singled out for this preferred treatment. A lengthy analysis of the Civil Rights Act of 1871, 42 U.S.C. paragraph 1983, in Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 665 (1978) relies on a speech by Representative John Bingham as follows: "Representative Bingham, for example, in discussing paragraph 1 of the bill, explained that he had drafted paragraph 1 of the Fourteenth Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), especially in mind." 436 U.S. at 686-87. On the same page of the speech where he mentioned Barron, Bingham characterized "the right of the people to keep and bear arms" as one of the "limitations upon the power of the States . . . made so by the Fourteenth Amendment." CONG. GLOBE, 42nd Cong., ist Sess., pt. 2, Appendix 84 (Mar. 31, 1871). As the Court pointed out, "Representative Bingham, the author of paragraph 1 of the Fourteenth Amendment, . . . declared the bill's purpose to be 'the enforcement . . . of the Constitution on behalf of every individual citizen of the Republic . . . to the extent of the rights guaranteed to him by the Constitution."' 436 U.S. at 685 n. 45. Another authority cited in Monell (id.) was Representative Henry L. Dawes, who stated on the pages referenced by the Court that the Fourteenth Amendment "has secured to [the citizen] the right to keep and bear arms in his defense." CONG. GLOBE, 42nd Cong., ist Sess., pt. 1, 475-76 (Apr. 5, 1871). Patsy v. Florida Board of Reqents, 457 U.S. 496 (1982) points out that, in passing the Civil Rights Act, Congress assigned to the federal courts a paramount role in protecting constitutional rights. Representative Dawes expressed this view as follows: "The first remedy proposed by this bill is a resort to the courts of the United States .... If there be power to call into courts of the United States an offender against these rights, privileges, and immunities, and hold him to an account there, either civilly or. criminally, for their infringement, . . . there is no tribunal so fitted . . . as that great tribunal of the Constitution." Id. at 503. (citing CONG.GLOBE, 42d Cong., 1st Sess. 476 (1871)) (emphasis added.) "These rights, privileges, and immunities," which the Supreme Court noted are "constitutional rights" that the federal courts are bound to protect, were identified in detail by Representative Dawes just before he uttered the words quoted above by the Court. Dawes stated in part: The rights, privileges, and immunities of the American citizen, secured to him under the Constitution of the United States, are the subject matter of this bill .... . . . Then again he has secured to him the right to keep and bear arms in his defense .... It is all these, Mr. Speaker, which are comprehended in the words, "American citizen," and it is to protect and to secure him in these rights, privileges and immunities this bill is before the House. CONG.GLOBE at 475-76. After quoting Dawes, the Supreme Court references the remarks of Representatives Butler and Coburn. 457 U.S. at 504. On the pages referred to by the Court, Butler argued for protection of "rights, immunities, and privileges" guaranteed in the Constitution. CONG.GLOBE at 448-49. In a report introducing the civil rights bill just weeks before, Butler advocated protection for "the well-known constitutional provision guaranteeing the right in the citizen to 'keep and bear arms' .... " H.R.REP. No. 37, 41st Cong., 3d Sess. 3 (Feb. 20, 1871). The page reference to Coburn finds him supporting the bill to prevent the following state infringement: "How much more oppressive is the passage of a law that they shall not bear arms than the practical seizure of all arms from the hands of the colored men?" CONG.GLOBE, 42d Cong., ist Sess. 459 (1871). (The Court relies on this page of Coburn's speech as authority four times. 457 U.S. at 504-06.) The Supreme Court continued: "Opponents of the bill also recognized this purpose and complained that the bill would usurp the State's power .See, e.g., . . . remarks of Representative Whitthorne . . . , Id. at 504 n.6. On the page cited by the Court, Whitthorne noted that the proposed Civil Rights Act, today's paragraph 1983, would allow suits by any person "who conceives that he has been deprived" by state action "of any right, privilege, or immunity secured to him by "the Constitution of the United States." Whitthorne added that if a police officer seized a pistol from a "drunken negro," "the officer may be sued, because the right to bear arms is secured by the Constitution ...." CONG.GLOBE, 42d Cong., ist Sess. 337 (1871). The Supreme Court cites Senator Thurman four times as a representative opponent of the civil rights bill. 457 U.S. at 504 n.6, 505 n.7, 506 & n.9. The Court depicts such opponents as correctly recognizing the bill's broad scope. Id. at 504 n.6. Senator Thurman included the Second Amendment among the "rights privileges, and immunities of a citizen of the United States." "Here is another right of a citizen of the United States, expressly declared to be his right_the right to bear arms; and this right, says the Constitution, shall not be infringed." CONG.GLOBE, 42d Cong., 2d Sess., App. 25-26 (1872). Senator Sherman_whom Patsy relied upon as a proponent of the bill (457 U.S. at 505 n.8)-agreed with Thurman's assessment as far as it went. CONG.GLOBE, 42d Cong., 2d Sess., App. 25-26 (1872). The Patsy Court did not ignore Representative Bingham, the draftsman of the Fourteenth Amendment, and approvingly cites the same page of his well-known speech: "that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States." Bingham proceeded to read each of those amendments, including the Second Amendment. Id., ist Sess., App., 85 (1871). (This page is cited as authority in 457 U.S. at 507.) The Court has never held that the Second Amendment does not apply to the states through the Fourteenth Amendment.21 The Court confirmed that it had never addressed this issue in Miller v. Texas, 153 U.S. 535 (1894), which remains the last word on the subject from the Court. Miller attacked a state statute on the bearing of pistols as violative of the Second, Fourth, and Fourteenth Amendments. However, he asserted these arguments for the first time in a motion for rehearing after his conviction had been affirmed by a state appellate court. The Court stated (id. at 538) that the Second and Fourth Amendments did not directly apply to the states, citing the preFourteenth case of Barron v. Baltimore, 32 U.S. 243, 250-51 (1833) (Fifth Amendment just-compensation clause does not restrict state action) and United States v. Cruikshank, 92 U.S. 542, 552-53 (1876)("the first amendment . was not intended to limit the powers of the State governments . . . but to operate upon the National government alone"; same with Second Amendment). Cruikshank was also cited in Presser v. Illinois, 116 U.S. 252 (1886). Presser held that a prohibition on unlicensed armed marches "do[es] not infringe the right of the people to keep and bear arms," adding that the First Amendment right to assemble and the Second Amendment right to bear arms do not, in and of themselves, limit state action. 116 U.S. at 265, 267. Presser did not address whether the Fourteenth Amendment incorporates the First and Second Amendments so as to limit state action concerning the rights there declared.22 The Court in Miller v. Texas then turned to the claim that the Texas statute violated the rights to bear arms and against warrantless searches as incorporated in the Fourteenth Amendment. The Court would not hear objections not made in a timely fashion: And if the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court .... A privilege or immunity under the Constitution of the United States cannot be set up here . . . when suggested for the first time in a petition for rehearing after judgment. Id. at 538-39. Rather than reject incorporation of the Second and Fourth Amendments into the Fourteenth, the Supreme Court merely refused to decide the defendant's claim because its powers of adjudication were limited to the review of errors timely assigned in the trial court. The Court merely left open the possibility that the right to keep and bear arms and freedom from warrantless searches would apply to the states through the Fourteenth Amendment. While the above was the last word by the Supreme Court on the issue, Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) stated: The law is perfectly well settled that the first ten Amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors. . . . In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions . . . . Thus, . . . the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons .... Thus, the states may regulate certain aspects of the exercise of the right to keep and bear arms, but may not prohibit its exercise altogether. CONCLUSION Supreme Court jurisprudence coupled with the intent of the Framers makes clear that the Second Amendment guarantees the right of law-abiding individuals to keep and bear arms. The Fourteenth Amendment incorporates the Second Amendment so as to protect this right from state infringement. As Americans celebrate the Bicentennial of the Bill of Rights, it is evident that the Second Amendment is not an embarrassing relic to hide in the closet, but is as essential to human freedom as is any other fundamental right. 1 Ullmann v. United States, 350 U.S. 422, 426-29 (1956). 2 Among the cases cited by the Supreme Court are the following: "The arms which it guarantees American citizens the right to keep and to bear, are such as are needful to, and ordinarily used by a well regulated militia, and such as are necessary and suitable to a free people, to enable them to resist oppression, prevent usurpation, repel invasion, etc., etc." Fife v. State, 31 Ark. 455, 458, 25 Am. Rep. 556 (1876). "Some courts have . . . held that the constitutional protection covers the bearing of such arms only as are a customary part of the equipment of a militiaman .... On the other hand, some courts . . . have extended the protection to weapons of all descriptions." People v. Brown, 253 Mich. 537, 235 N.W. 245, 246 (1931). "The arms which every person is secured the right to keep and bear (in the defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State." State v. Duke, 42 Tex. 455, 458-59 (1875). "In regard to the kind of arms referred to in the [second] amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets,-arms to be used in defending the state and civil liberty . . . ." State v. Workman, 35 W.Va. 367, 373, 14 S.E. 9, 11 (1891). Thus, it has been generally assumed that militia-type firearms are constitutionally protected; past controversies centered on other types of weapons. While not cited by the Supreme Court, the following cases make this point: "IT]he term 'arms' as used means such arms as are recognized in civilized warfare .... " State v. Swanton, 129 Ariz. 131, 629 P.2d 98, 99 (Ct. App. 1981). "The intention was to embrace the 'arms', an acquaintance with whose use was necessary for their protection against the usurpation of illegal power_such as rifles, muskets, shotguns, swords, and pistols." State v. Kerner, 181 N.C. 574, 107 S.E. 222, 224-25 (1921). "Under this head, with a knowledge of the habits of our people, and of the arms in the use of which a soldier should be trained, we would hold that the rifle of all descriptions, the shot-gun, the musket and repeater are such arms; and that under the constitution the right to keep such arms cannot be infringed or forbidden by the legislature." Andrews v. State, 50 Tenn. 165, 179, 8 Am. Rep. 8, 14 (1871). Id. at 183 n.3. 3 J. Story, COMMENTARIES ON THE CONSTITUTION 646 (5th ed. 1891). "One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms . . . ." J. Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 264 (1893). 4 T. Cooley, CONSTITUTIONAL LIMITATIONS 729. T. Cooley, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 281-282 (2d ed. 1891) states further: The right is General_It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent .... The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. 5 See United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n.5 (7th Cir. 1974), an opinion by Judge Sprecher, author of The Lost Amendment, 51 A.B.A.J. 554, 665 (1965), which argues the individual rights position. In his above opinion, Sprecher cited United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), which found "no conflict between [the prohibition] and the Second Amendment since there is no showing that prohibiting possession of firearms by felons obstructs the maintenance of a well regulated militia." 6 Felons are "a separate class whose individual right to bear arms may be prohibited." United States v. Wiley, 309 F.Supp. 141, 145 (D. Minn. 1970), aff'd 438 F.2d 773 (8th Cir. 1971). See United States v. Bowdach, 414 F.Supp. 1346, 1353 & n.11 (S.D. Fla. 1976), aff'd 561 F.2d 1160 (5th Cir. 1977) ("possession of the shotgun by a non-felon has no legal consequences. U.S. Const. Amend. II."). 7 695 F.2d at 270. While factually incorrect, the court noted that "we do not consider individually owned handguns to be military weapons." Id. at 270 n.8. 8 The rifle is the militia arm par excellence. The language of the Second Amendment resulted in "the deference and immunity extended to rifles in the earliest enactments .... " People v. Raso, 9 Misc.2d 739, 170 N.Y.S.2d 245, 248-49 (1958). People v. Warden, 154 App. Div. 413, 139 N.Y.S. 277, 284 (1913) states: "If the Legislature had prohibited the keeping of arms, it would have been clearly beyond its power." 9 Construing the Second Amendment and a state guarantee, State v. Kerner, 181 N.C. 574, 577-78, 107 S.E. 222, 224-25 (1921) noted that the term "should be construed to include all 'arms' as were in common use, and borne by the people . . . such as rifles, muskets, shotguns, swords, and pistols." "It does not guarantee . . that the people have the futile right to use submarines and cannons .... " Id. 10 In State v. Rupe, 101 Wash.2d 664, 683 P.2d 571, 594 (1984), the court was concerned with the right to keep various firearms, including "a CAR 15 semiautomatic rifle (civilian version of the military's M-16)," and stated: "Constitutionally protected behavior cannot be the basis of criminal punishment." Rinzler v. Carson, 262 So.2d 661, 666 (Fla. 1972) refers to "the historic constitutional right of the people to keep and bear arms," as including "weapons not concealed upon the person, which, although designed to shoot more than one shot semi-automatically, are commonly kept and used by law-abiding people for hunting purposes or for the protection of their persons and property, such as semiautomatic shotguns, semiautomatic pistols and rifles." 11 The Congressional finding that the Second Amendment guarantees "the rights of citizens" to keep and bear arms was supported by The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution, Senate Judiciary Committee, 97th Cong., 2d Sess. 12 (1982), which states: "The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner." In "The FourteenthAmendment and the Right to Keep and Bear Arms: The Intent of the Framers," the Report (id. at 68-82) demonstrates that the Second Amendment was intended to be incorporated into the Fourteenth Amendment so as to limit state action. 12 The above Congressional findings concerning the Second Amendment in the Firearms Owners' Protection Act are referred to in United States v. Breier, 827 F.2d 1366 (9th Cir. 1987) (Noonan, J., dissenting from denial of rehearing) as follows: Guns are the subject of constitutional protection: "the right of the people to keep and bear arms shall not be infringed." United States Constitution, Amendment II. Congress has regulated guns, sensitive to the Second Amendment and to the difference between hobbyists and those making a living out of the gun business. 13 18 U.S.C paragraph 926A. Senator Symms introduced this provision with the explanation: "The intent of this amendment . . . is to protect the second amendment rights of law-abiding citizens wishing to transport firearms through States which otherwise prohibit the possession of such weapons." 131 CONG. REC. $9114 (July 9, 1985). 14 The only appellate case ever to uphold a general prohibition on possession of handguns squarely conflicts with Malloy's instruction. Quilici v. Village of Morton Grove, 695 F.2d 261, 270 n.8 (7th Cir. 1982) (2-1 opinion), cert. denied 464 U.S. 863 (1983) ("the debate surrounding the adoption of the second and fourteenth amendments . . . . has no relevance on the resolution of the controversy before us."). 15 This author was unaware of this declaration in the Freedmen's Bureau Act when he published THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (University of New Mexico Press 1984), which analyzes the Congressional intent to incorporate the Second Amendment into the Fourteenth Amendment. Id. at 107153. The most definitive work on the incorporation of the Bill of Rights into the Fourteenth Amendment does not reflect passage of the Freedmen's Bureau Act, although it is cognizant of the bill itself: The most telling evidence that the "full and equal benefit of all laws and proceedings for the security of person and property" could be read to include constitutional rights in the Bill of Rights comes from Republicans in the Thirtyninth Congress themselves. When they passed the Freedman's Bureau bill, they provided that Blacks should have, among other things, "full and equal benefit of all laws and proceedings for the security or person and estate, including the constitutional right of bearing arms." M. Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 72 (Duke University Press 1986). Similarly, several Supreme Court cases analyze other parts of the Freedmen's Bureau bill and appear unaware that it was enacted into law. E.g., Loving v. Virginia, 388 U.S. 1, 9 (1967); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 423 n.30 (1968). 16 All voting tabulations are made from CONG. GLOBE, 39th 17 Id. at 3842. 18 Id. at 654 (Feb. 5, 1866), 688 (Feb. 6, 1866), 2545 (May 10, 1866), 3149 (June 13, 1866), 2878 (May 29, 1866), and 3850 (July 16, 1866). 19 Coolidde, id. at 454 n.4, quotes Gouled v. United States, 255 U.S. 298, 303-304 (1921) concerning rights "declared to be indispensable to the 'full enjoymentof personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen . . . ." See also id. at 588, 591 n.8, and 596; United States v. Verdugo-Urquidez, 856 F.2d 1214, 1220 (9th Cir. 1988), rev'd on other grounds 494 U.S. 259 (1990) ("The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.") (quoting 2 J. Kent, COMMENTARIES 1 (1827)). It is well established that the right to personal liberty and personal security_which the Congress that passed the Fourteenth Amendment said includes "the constitutional right to bear arms"-are protected by the Fourteenth Amendment. Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir. 1989) squarely holds that no state may commit "a violation of her constitutional right to personal security, a liberty interest protected by the fourteenth amendment." 20 For instance, Senator Henry Wilson introduced a bill to disband the Southern state militias because they abused freedmen and "were engaged in disarming the negroes." CONG.GLOBE, 39th Cong., Ist Sess., 914 (Feb. 19, 1866). Because of such complaints, Congress disbanded the Southern state militias. 15 Stat. 487 (Mar. 2, 1867). 21 United States v. Cruikshank, 92 U.S. 542 (1876) stated that the federally recognized rights of peaceable assembly and bearing arms did not of themselves limit state action. This was dictum, since the case involved the disarming and murder of freedmen by KKK members. Id. at 551, 553; 25 F.Cas. 707 (C.C.D. La. 1874). The Court recognized that the rights to assemble and to bear arms were not "granted" by the Constitution because they existed long before its adoption. 92 U.S. at 551, 553. Presser v. Illinois, 116 U.S. 252 (1886) repeated that the First and Second Amendments did not of themselves apply to the states. This too was dictum, since the Court held that bans on unlicensed armed parades on city streets "do not infringe on the right of the people to keep and bear arms." Id. at 265. Presser does not discuss whether the Fourteenth Amendment incorporates the Second Amendment. 22 Presser rejected the argument that a person has, under the privileges and immunities clause of the Fourteenth Amendment, a right "to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State". Id. at 266. The Court also rejected without 'discussion a due process argument under the Fourteenth Amendment. Id. at 268. Presser discussed the Second Amendment issue separately from any Fourteenth Amendment issues, and did not discuss incorporation. The ``Assault Weapon'' Panic By David B. Kopel David B. Kopel is a fellow at the Independence Institute in Golden Colorado. He is also a member of the speakers Bureau of the American Civil Liberties Union of Colorado and an associate policy analyst with the Cato Institute in Washington, D.C. Mr. Kopel graduated from the University of Michigan Law School where he served on the Michigan Law Review. His book about gun control, The Samurai, the Mountie and the Cowboy was published in 1992 by Prometheous Books. Mr. Kopel's presentation was based in large part on his article, The Assault Weapon Panic: "Political Correctness" Takes Aim at the Constitution published by the Independence Institute. Persons who claim that the Second Amendment protects only "sporting guns" implicitly assert that protection of recreational hunting and target shooting was seen by the authors of the Bill of Rights as some particularly important activity to a free society. The framers, as the "sporting gun" theory goes, apparently intended to exalt sports equipment used in recreational hunting to a level of protection not enjoyed by equipment for any other sport. It is true that the framers did see sport hunting as an activity better suited for building good character than other sports. 1 Nevertheless, it is difficult to believe that the Framers would follow an amendment guaranteeing speech, assembly, and the free exercise of religion with an amendment protecting sporting goods. Moreover, to the extent that there is a real conflict between public safety and sports equipment, public safety should win. Except for shooting in Department of Civilian Marksmanship programs, which have been created to enhance civil preparedness, recreational use of "assault weapons" does not directly enhance public safety. 2 Hence, if "assault weapons" posed a substantial threat to public safety, control would be in order because protecting many people from death is more important than enjoying sports. One reason that "assault weapon" bans are improper is that government statistics prove that "assault weapons" are no more threat to public safety than any other gun; the "safety vs. sports" conflict is non-existent. Reflecting a sports-based theory of gun ownership, "assault weapon" prohibitionists claim that these guns have no purpose except to kill. As a factual matter, the claims are incorrect. The guns, as detailed in this section, are frequently used for sports. And ironically, the guns have the distinction of being the only firearms ever designed to wound rather than to kill. But even if the gun prohibitions' claim were correct, it would do nothing to militate for a ban on the guns. Only if all killing were wrong would a gun made for killing be illegitimate. 3 American law clearly guarantees the natural right to self-defense, including the right to take an aggressors' life if necessary. Semiautomatics do not deserve Constitutional protection because they are sometimes used for hunting. Rather, they deserve protection because they are militia guns _ because they are made for personal and national defense, as the next section elaborates. The Second Amendment of the United States Constitution 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." 4 Supports of "assault weapon" prohibition argue that the Second Amendment only grants to states a right to maintain a militia. Under this theory, the "right of the people to keep and bear arms" is infringed by laws which disarm states, but not laws which disarm people. The "right of the people" is said to be a "collective right," which (like "collective property" in Communist nations) can never be possessed by any individual because it belongs to everyone at once. In contrast, the theory which has been accepted six times by the Supreme Court, 5 is compelled by the text of the Second Amendment itself, 6 is held by approximately 89% of the American people, 7 is supported by the large majority of scholarship, 8 and which comports with original intent 9 is the individual rights theory. Under this theory, the "right of the people" to bear arms recognizes a right of individual people to own guns. 10 The discussion below attempts to show how the framers' objection of protecting the states' "well-regulated militias" was carried out by the recognition of "the right of the people to keep and bear arms." This Issue Paper has thus far presented two contrasting views of semiautomatic "assault weapons." This Paper has argued that so-called "assault weapons" are no more deadly or dangerous than other semiautomatics and other guns. If this Paper's contention is correct, then an "assault weapon" ban would violate the right to bear arms because it would ban certain guns which are not logically different from other guns. The ban would also violate the equal protection clause of the Fourteenth Amendment, which requires that legislative classifications be rational, and based on real differences, rather than on hysteria or misinformation. In contrast, gun prohibition advocates suggest that the semiautomatics which they call "assault weapons" are true "weapons of war" and not "sporting weapons." If the prohibitionists' theory is correct, then "assault weapon" prohibition is again unconstitutional, for the historical and judicial record shows that the core aim of the Second Amendment was to ensure that weapons of war would be in the hands of ordinary American citizens. The history and evolution of the Second Amendment clearly shows that weapons of war _ and not sports equipment _ are at the heart of the right to bear arms. In 1982, the Senate Subcommittee on the Constitution evaluated the historical record, and unanimously concluded that the Second Amendment recognizes an individual right to bear arms. The Subcommittee noted that when James Madison drafted the second amendment, he "did not write upon a blank tablet." 11 The British history that predated the Bill of Rights affirmed not only an individual right, but also a duty, to own firearms. 12 Britain's great expositor of the common laws, Sir William Blackstone, called the right to bear arms the "fifth auxiliary right of the subject," which would allow citizens to vindicate all the other rights. 13 He explained the right as an instrument to permit violent revolution: "in cases of national oppression, the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people." 14 The duties for which the British right to bear arms was intended _ national defense against unjust rulers, national defense again foreign governments, and local defense against crime _ obviously required the use of anti-personal weapons, and not sports equipment. The English colonies in America quickly established an individual right and duty to bear arms that paralleled the developments in England. 15 In 1658, the Virginia House of Burgesses required every householder to have a functioning firearms. 16 The legislatures in Virginia and the other colonies did not require persons to have guns so that those persons could enjoy a right sporting life. Instead, the purpose was to have a citizenry which could be called to militia duty to fight in numerous Indian wars. 17 Additionally, in both Great Britain and America, citizens were required to participate in anti-crime patrols such as night watch and to obey the commands of sheriffs to pursue fleeing felons. Lastly, as a practical matter, citizens had to possess arms for their own personal protection from Indians or criminals, since public safety agencies were few and far between. The weapons that were most useful for these colonial purposes were weapons of war, and not guns designed for sports (although in practice there was no distinction, and almost all guns served multiple purposes). Colonial recognition of the right and duty to bear arms helped precipitate the break with England. When the number of British soldiers increased in the colonies, colonists asserted their right to own firearms in order to defend their liberties. As the New York Journal Supplement proclaimed in 1769, "It is a national right which the people have reserved for themselves, confirmed by their Bill of Rights, to keep arms for their own defense. The outbreak of hostilities came at Lexington and Concord, when the British commander from Boston was informed that the Americans owned cannons, and the British marched on Concord to seize the American armory there. 18 (It was also a dispute over weapons of war _ and not sporting guns _ that sparked the Texan Revolution against Mexico. When Mexican dictator Santa Ana's forces attempted to confiscate a small cannon from settlers in Gonzales, the settlers raised a flag that said "Come and Take It," and the Texas Revolution began. 19) The Revolutionary War strengthened the colonists' beliefs about the importance of an individual right to bear arms. 20 The militia arose wherever the British deployed. Thus, the American side developed a tactical mobility to match the British mobility at sea. As historian Daniel Boorstin put it, "The American center was everywhere and nowhere _ in each man himself." 21 With every American a militiaman, the British could triumph only be occupying the entire United States, and that task was far beyond their manpower resources. The Americans never really defeated the British; the war could have continued long past Yorktown. After seven years of winning most of the battles but getting no closer to winning the war, the British simply gave up. The guns with which the American militia helped win the American Revolution were weapons of war. Particularly effective was the long-range Kentucky Rifle, which enabled American sharpshooters to snipe at British officers. After the successful revolution the maintenance of a citizen militia was a primary concern of the framers of the Constitution. 22 General Washington's Inspector General, Baron Von Steuben, proposed a "select militia" of 21,000 that would be given government issue arms and special government training. 23 When the proposed Constitution was presented for debate, anti-Federalists complained that it would allow for the withering of the citizen militia in favor of the virtual standing army of a "select militia." 24 Richard Henry Lee, in his widely-read Letters from the Federal Farmer to the Republican, warned ratifies that a select militia had the same potential to deprive civil liberties as a standing army, for if "one fifth or one eighth part of the people capable of bearing arms should be made into a select militia," the select militia would rule over the "defenseless" rest of the population. Therefore, wrote Lee, "the Constitution ought to secure a genuine, and guard against a select militia... to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them. 25 Federalists promoting the new Constitution allayed fears of select militias and Congress' broad powers to "raise armies" under Article I, section 8. They reasoned that Americans would have nothing to fear from federal power since American citizens were universally armed. 26 Noah Webster, in the first major Federalist pamphlet, attempted to calm Pennsylvania anti-Federalists: Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. 27 The Federalist Papers looked to the state militias, comprised of the armed populace, as the ultimate check on government. As James Madison put it, "the ultimate authority... resides in the same people alone." Madison predicted that no federal government could become tyrannical, because if it did, there would be "plans of resistance" and an "appeal to trial by force." A federal standing army would surely lose that appeal, because it "would be opposed by a militia amounting to near half a million citizens with arms in their hands." Exalting "the advantage of being armed, which the Americans possess over almost every other nation," Madison contrasted the American government with the European dictatorships, which "are afraid to trust the people with arms. 28 Alexander Hamilton explained that "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government..." 29 Hamilton reassured skeptical anti-Federalists that no standing army, however large, could oppress the people, for the federal soldiers would be opposed by state militias consisting of "a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens." 30 Many delegates to the state conventions that ratified the Constitution expressed discontent over the Federalists' assurances about existing protection of the right to possess arms. 31 New Hampshire provided the key ninth vote that ratified the Constitution only after receiving assurance that a Bill of Rights would be drafted with a protection for the right of individuals to own firearms. 32 The New Hampshire delegates suggested that the new Bill of Rights provision be worded as follows: "Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion. 33 At the Virginia convention, Patrick Henry had stated, "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined... The great object is that every man be armed... Everyone who is able may have a gun." 34 During the ratification process five state conventions demanded protection of the right of citizens to bear arms, more than demanded protection of free speech. 35 The sentiment of Patrick Henry and the other state convention delegates was not fear that the federal government might regulate sports equipment too severely. The first Congress delegated the duty of writing a Bill of Rights to James Madison. Madison obtained copies of state proposals and attempted to combine them in a succinct passage that all state delegates would accept. 36 The original intent of the second amendment remained consistent with the intentions of the states that demanded it. Madison's use of the phrase "well-regulated militia" was not a code word for the National Guard (which did not even exist). The phrase was not esoteric, but had a commonly-accepted meaning. Before independence was even declared, Massachusetts patriot Josiah Quincy had referred to "a well-regulated militia composed of the freeholder, citizen and husbandman, who take up their arms to preserve their property as individuals, and their rights as freemen." 37 "Who are the Militia?" asked George Mason of Virginia. He answered his own question: "They consist now of the whole people." 38 The same Congress that passed the bill of Rights, including the Second Amendment and its militia language, also passed the Militia Act of 1792. That act enrolled all able-bodied white males in the militia and required them to own arms. Although the requirement to arm no longer exists, the definition of the militia has stayed the same; section 311(a) of title 10 of the United States Code declares, "The militia of the United States consists of all able-bodied males at least 17 years of age and... under 45 years of age." The next section of the code distinguishes the organized militia (the National Guard) from the "unorganized militia." The modern federal National Guard was specifically raised under Congress's power to "raise and support armies," not its power to "Provide or organizing, arming and disciplining the militia." 39 James Madison wrote the Second Amendment in order to prevent the right to bear arms from vesting only in "select militias" like state national guard units. The Second Amendment was written to secure an individual right to bear arms that provided an ultimate check on government and any of its "select" militias. 40 The core of the Second Amendment therefore was that state militias _ comprised of individual citizens bringing their own guns to duty _ would have the power to overthrow a tyrannical federal government and its standing army. The weapons that would be most suited to overthrow a dictatorial federal government would, of course, be weapons of war, and not sports equipment. To persons accustomed to think of the "right to bear arms" as a privilege to own sporting goods, it must seem incredible that the authors of the Second Amendment meant to ensure that the American people would always own weapons of war. But that is precisely what the historical record demonstrates. The only commentary available to Congress when it ratified the Second Amendment was written by Tench Coxe, one of James Madison's friends. Coxe explained: The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves... Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. 41 This original intent of the Second Amendment has nothing to do with sports, and only a little to do with personal defense against criminals. The text of the Second Amendment itself highlights the implausibility of the claim that the Amendment refers to sporting equipment rather than to devices made for injuring or killing other persons. "Arms," says Webster's Dictionary are "a means (as a weapon) of offense or defense; esp. FIREARM." 42 Sporting equipment that is not a means of offense or defense is not within the category of "arms," and hence cannot be what the "right to bear arms" refers to. The Second Amendment guarantees a popular militia in order to provide for "the security of a free state." _ ensuring that there will always be a force capable of overthrowing a domestic tyrant, or of resisting an invasion by a foreign one. The weapons best suited for this purpose are not weapons particularly suited for duck hunting; the weapons at the heart of the Second Amendment are weapons of war. Under some theories of Constitutional interpretation, the language, common understanding, and intent of Constitutional provisions may be ignored by courts based on a judge's personal determinations of appropriate social policy. For example, when a lower federal court upheld Morton Grove's handgun prohibition, the court declared that the intent of the Second Amendment was "irrelevant." 43 The United States Supreme Court, however, has never claimed that original intent is "irrelevant," and the thrust of the most recent Supreme Court jurisprudence is to place the greatest emphasis upon the people's intent and the text of the Constitution. The leading (and only) Supreme Court case dealing with which weapons are protected by the Second Amendment falls squarely within the tradition of textual analysis and original intent. In the 1939, case United States v. Miller, 44 Jack Miller was charged under section 11 of the 1934 "National Firearms Act" with the unlawful transportation of an unregistered "sawed-off" shotgun in interstate commerce. 45 The federal district court quashed the indictment on the grounds that section 11 of the National Firearms Act violated the Second Amendment. 46 The prosecutor appealed directly to the Supreme Court, and the Court produced its most thorough analysis of the meaning of the Second Amendment. 47 Instead of defining the militia as a select group such as the national guard, the Court unanimously defined "militia" as "all males physically able of acting in concert for the common defense." 48 The Court went on to note that these militiamen were expected "to appear bearing arms supplied by themselves." 49 Even though the Court recognized an individual right to bear arms, the justices still had to decide what types of "arms" individuals had a right to bear. The Court suggested that militia arms would consist of "the kind in common use at the time." 50 that had "some reasonable relationship to the preservation of efficiency of a well-regulated militia." 51 Since the defendant had not briefed this issue (he had disappeared while free pending appeal), the Court was presented with no evidence that a sawed-off shotgun had any value to the militia. The Court wrote: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the second amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. 52 Although the Court held that this particular case did not present a violation of the Second Amendment, the unanimous opinion recognized an individual right to bear arms which were "part of the ordinary military equipment" or which "could contribute to the common defense" _ weapons of war. For the anti-gun lobbies to mouth their epithet "weapons of war" to concede that semiautomatics are protected arms under the Supreme Court's Miller test. Concluding that the Second Amendment protects the right of American people to own arms which have a reasonable relationship to the maintenance of a well-regulated militia _ that is, weapons of war _ does not prove that all "assault weapon" prohibitions are necessarily unconstitutional. The Second Amendment, like the rest of the Bill of Rights, was historically seen as only a limit on federal power, and not a restraint on state or local governments. Thus, the Second Amendment, standing alone, would only prevent federal "assault weapon" prohibitions or other infringement. The individual rights recognized in the Bill of Rights have only become enforceable against state and local governments thought the 14th Amendment, which forbids states (and localities, which are subdivisions of states) to violate fundamental human rights. In the 1876 case United States v. Cruikshank, the Supreme Court ruled the right peaceably to assemble and the right to bear arms were not protected against state interference by the Fourteenth Amendment's requirement that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." 53 The court reasoned that the clause only applied to "privileges or immunities" that arose from citizenship in the United States (such as the right to interstate travel). The Court said the peaceable assembly and bearing arms were not rights which arose as a result of American citizenship; rather, they were fundamental human rights which were found "wherever civilization exists." The First and Second Amendments, the Court said, had not granted a right to assemble or a right to bear arms, but had merely recognized the existence of those rights. 54 When California's "assault weapon" prohibition was challenged as violating the Second Amendment, the federal trial court, relying on Cruikshank, ruled that the Second Amendment could not be violated by state-level gun control, since the Second Amendment only restricts the federal government. 55 While Cruikshank has never been formally overruled, the federal trial court's reliance on it was dubious. Cruikshank dates from an era when the Supreme Court refused to hold any of the freedoms recognized in the Bill of Rights enforceable against the states. In the 20th century, the Supreme Court, while never over-ruling the 19th century "privileges and immunities" decisions, has relied on another provision of the 14th Amendment to make the Bill of Rights enforceable against the states. The 14th Amendment forbids any state to deprive a person of "life, liberty, or property without due process of law." The Court has interpreted this phrase to mean that there can be no state deprivations of life, liberty, or property which violate certain rights recognized by the Bill of Rights. Thus, in DeJonge v. Oregon, the Court held that the First Amendment right to peaceably assemble was made applicable against the states by the Fourteenth Amendment's "due process" clause. In Moore v. East Cleveland, the Court stated, in dicta, that the right to bear arms was also enforceable against the states via the 14th Amendment's due process clause. 56 Moore v. East Cleveland more closely followed the intent of the framers of the 14th Amendment than did the Cruikshank case, since the historical record shows that the right to bear arms was one of the rights which the framers were most intent on making applicable against state government. 57 A distinct Constitutional provision, not discussed by the Fresno court, provides an additional reason to doubt the Constitutionality of state (or local) gun prohibitions. Article I, section 8 of the Constitution grants the Congress the authority to call forth the militia into national service. Hence, state gun prohibitions deprive the federal government of its ability to summon a militia. In Presser v. Illinois, 58 the Supreme Court stated: It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provisions in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms... 59 Because the Fresno court ignored the clear language of Presser, and did not follow the modern Supreme Court's approach to the 14th Amendment, the case does not appear to be particularly well-reasoned. Regardless of whether the Fresno decision is eventually upheld on appeal, the case is relevant only in the handful of states, including California, which do not have a right to bear arms in their own state Constitution, and which must rely solely on the Second Amendment for protection of citizens' right to bear arms. To the extent that state Supreme Courts have confronted the issue of what types of arms are protected by the state Constitutional right to bear arms, the decisions militate against the Constitutionality of "assault weapon" prohibition. In 1846, the Georgia"' Supreme Court found that, even in the absence of an explicit right to bear arms in the state Constitution, the Georgia legislature had no power to interfere with the right of Georgia citizens to "keep and bear arms of every description." 60 After the Civil War, courts addressed the implications of a developing weapons technology. The decades immediately after the Civil War are particularly significant for evaluating the "assault weapon" issue, because it was in these decades that courts confronted rapid-fire, high-capacity weapons capable of causing mass destruction. The Civil War was by far American's bloodiest war; no war in American history remotely approaches the mass destruction and widespread death of that terrible conflict. The war witnessed the widespread use of the first type of repeating firearm (the revolver, invented several years before by Col. Samuel Colt) and the Gatling Gun, a hand-cranked ancestor of the machine guns. In the two decades following the war, the high-capacity, rapid-fire rifle (such as the Sharps, Winchester, and Henry models) became ubiquitous. The courts in the post-war years were more personally aware of the killing potential of rapid-fire, high-capacity weapons than any American courts have been before or since. In the 1871 case Andrews v. State, 61 the Tennessee Supreme Court held that, although the Tennessee Constitution did not protect "every thing that may be useful for offense or defense," the Constitution did protect "the rifle of all descriptions, the shotgun, the musket, and repeater." 62 In 1876, the Arkansas Supreme Court stated that protected "arms" included "the unusual arms of the citizen of the country." 63 The court agreed with the Tennessee court's listing of these arms and noted the addition of the "army and navy repeaters, which, in recent warfare, have very generally superseded the old-fashioned holster, used a weapon in the battles of our forefathers." 64 These early courts _ which were cited by the U.S. Supreme Court in Miller_ found that personal sidearms, including new repeating firearms, fell within the reach of constitutional provisions drafted in times of more simplistic weapons technology. In 1980, the Oregon Supreme Court approached more modern weapons developments in a similar manner. The court noted that since the era of the Civil War, "The development of powerful explosives, ... combined with the development of mass produced metal parts, made possible the automatic weapons, explosives, and chemicals of modern warfare." 65 The Oregon Court explained that "the term 'arms' as used by the drafters of the constitution probably was intended to include those weapons used by settlers for both personal and military defense... The term 'arms' would not have included cannon or other heavy ordnance not kept by militiamen or private citizens." 66 The court concluded that such modern heavy ordnance, used exclusively by the military, would not be considered individual "arms" deserving of constitutional protection. 67 The Attorney General of Oregon has stated that so-called "assault weapons" fall within the scope of arms protected under the Oregon Supreme Court's test. 68 Some proponents of "assault weapons" legislation have argued that even if one recognizes an individual right to bear arms, such guns are not the type of arms that individuals have a right to bear. Although the framers might have intended that citizens have a right to posses the single-shot rifles, shotguns, and pistols of their day, the gun prohibitionists assert that the Second Amendment never intended to give citizens the right to own modern small arms such as military-style semiautomatics. 69 It is true that the Second Amendment never intended to protect the right to own semiautomatics (since such guns did not exist), just as they never intended to protect the right to talk privately on a telephone or to broadcast news on a television (since telephones and televisions did not exist either). To assert that Constitutional protections only extend to the technology in existence in 1791 would be to claim that the First Amendment only protects the right to write with quill pens and not with computers, and that the Fourth Amendment only protects the right to freedom from unreasonable searches in log cabins and not in homes made from high-tech synthetics. The Constitution does not protect particular physical objects, such as quill pens, muskets, or log cabins. Instead, the Constitution defines a relationship between individuals and the government that is applied to every new technology. For example, in United States v. Katz, the Court applied the privacy principle underlying the Fourth Amendment to prohibit warrentless eavesdropping on telephone calls made from a public phone booth _ even though telephones had not been invented at the time of the Fourth Amendment. 70 Likewise, the principle underlying freedom of the press _ that an unfettered press is an important check on secretive and abusive governments _ remains the same whether the press uses a Franklin press to produce a hundred copies of a pamphlet, or laser printed to produce a hundred thousand. It is true that an individual who misuses a semiautomatic today can shoot more people than could an individual misusing a musket 150 years ago. 71 Yet if greater harm were sufficient cause to invalidate a right, there would be little left to the Bill of Rights. Virtually every freedom guaranteed in the Bill of Rights causes some damage to society, such as reputations ruined by libelous newspapers, or criminals freed by procedural requirements. The authors of the Constitution knew that legislatures were inclined to focus too narrowly on short term harms: to think only about society's loss of security from criminals not caught because of search restrictions; and to forget the security gained by privacy and freedom from arbitrary searches. That is precisely why the framers created a Bill of Rights _ to put a check on the tendency of legislatures to erode essential rights for short-term gains. Since the Constitution was adopted, virtually all of the harms that flow from Constitutional rights have grown more sever: * Today, if an irresponsible reporter betrays vital national secrets, the information may be in the enemy's headquarters in a new minutes, and may be used to kill American soldiers and allies a few minutes later. Such harm was not possible in an age when information traveled from America to Europe by sailing ship. * Similarly, an inappropriate leak of information in a superpower crisis could harden negotiating positions, leading at the worst to nuclear war. Previously, a leak might precipitate a war, but could not destroy the planet. * As Gary Hart learned the hard way, a single act of gutter journalism can wipe out in a week a decades-long career of public service. In the early years of the Constitution, journalists also printed stories of sex and politics, but the slower movement of information kept one tale of indiscretion from growing to such destructive proportions. * Correspondingly, a show like "60 Minutes" can wrongfully ruin a person's reputation throughout the nation, a feat no single newspaper could have accomplished before. * In earlier times, strong community ties and traditional values made young people less susceptible to religious charlatans. But today, freedom of religion can kill people, as we learned at Jonestown. * Criminal enterprises have always existed, but the proliferation of communications and transportation technologies such as telephones and automobiles makes possible the existence of criminal organizations of vastly greater scale _ and harm _ than before. The principle underlying the Second Amendment is resistance to federal tyranny. The method of achieving the Second Amendment's goal is for individual citizens to possess arms equal to those possessed by the federal standing army. If the federal standing army possesses muskets, then citizens may own muskets. If the federal standing army own M16 assault rifles, then citizens may own M16 assault rifles. Persons who find the argument above to be unpersuasive are not without a remedy. If the Constitutional right to bear arms has become inappropriate for modern society, because the people are so dangerous and government so trustworthy, then a Constitutional amendment to abolish or limit the right may be proposed. (Although given the fact that only two states have enacted "assault weapon" legislation, it is doubtful that a proposed amendment would be ratified by many states.) But it is not permissible for legislators or courts to flout an existing Constitutional guarantee, even if they personally think it unimportant. 72 So-called "assault weapons," particularly the politically incorrect semiautomatic rifles, are well-suited for personal defense against criminals. 73 More significantly, from a Second Amendment viewpoint, they are well-suited for community defense against dangers both internal and external. Americans watched in horror when television showed the Cambodian school children killed by a deranged criminal with a Kalshnikov rifle, in a Stockton, California, schoolyard in January 1989. America's "Drug Czar" William Bennett informed the American people the Kalashnikovs were guns made only for drug traffickers, like the Crips and Bloods gangs in Los Angeles. Through Bennett and the television networks, America heard one story about semiautomatic rifles. Another, equally dramatic story, never was heard outside Los Angeles. In May 1988, the Bloods attacked a Los Angeles housing project containing Cambodians. The Cambodians fought back with M1s and Kalashnikovs and drove away the Bloods. 74 To defend a neighborhood from Bloods on Piru Street, Los Angeles, "some block clubs had to resort to armed guerrilla warfare," reports The Washington Times. One block club leader met with Mayor Bradley, the Police Chief Daryl Gates, and with the city attorney (all vocal gun prohibitionists) and achieved nothing. Drug dealers continued to shoot at block club members, but now the block club fired back. After club leader Norris Turner shot and wounded two gang members who had tried to ambush and kill him on the street, Turner threatened to call the media. Police presence increased, and the neighborhood was cleaned up. 75 The War on Drugs took on a new meaning in September 1989 in Tacoma, Washington, where angry citizens gathered for an anti-crime rally. Spurred by the rally, an off-duty sergeant organized a dozen off-duty Army Rangers and went into free-fire combat with neighborhood crack dealers. Up to 300 rounds of handgun, shotgun, and semiautomatic rifle fire were exchanged. No fatalities resulted, and Washington Governor Booth Gardner praised the gunmen: "They were very good shots. They weren't shooting to harm. They were shooting to make a point, I think." The police mediated a truce, whereby the drug dealers agreed to stop dealing in the streets, and the neighborhood agreed to put away its guns. 76 Citizens of the United States have often used personal sidearms to aid law enforcement officials in restoring public order. 77 In 1977, a blizzard in Buffalo, New York, and a flood in Johnstown, Pennsylvania, both prompted local officials to call for citizens to arm themselves and restore the public order. 78 In other situations, as in the aftermath of an earthquake or hurricane, there may not even be any public officials around to urge citizens to protect themselves. In the chaotic frontier circumstances of an area after a natural disaster _ or the modern inner city under day-to-day conditions _ a reliable, rugged, easy to operate firearms is the type of arm which is most necessary for the protection of life. The most recent instance in which people of the United States mobilized "bearing arms supplied by themselves and of the kind in common use at the time" to defend their nation was during the World War II. After Pearl Harbor the citizen militia was called to duty. Nazi submarines were constantly in action off of the East Coast. On the West Coast, the Japanese seized several Alaskan islands, and strategists wondered in the Japanese might follow up on their dramatic victories in the Pacific with an invasion of the Alaskan mainland, Hawaii, or California. Hawaii's governor summoned armed citizens to man checkpoints and patrol remote beach areas. 79 Maryland's governor called on "the Maryland Minute Men," consisting mainly of "members of Rod and Gun Clubs, of Trap Shooting Clubs and similar organizations," for "repelling invasion forays, parachute raids, and sabotage uprisings," as well as for patrolling beaches, water supplies, and railroads. Over 15,000 volunteers brought their own weapons to duty. 80 Gun owners in Virginia were also summoned into home service. 81 Americans everywhere armed themselves in case of invasion. 82 After the National Guard was federalized for overseas duty, "the unorganized militia proved a successful substitute for the National Guard," according to a Defense Department study. Militiamen, providing their own guns, were trained in patrolling, roadblock techniques, and guerrilla warfare. 83 The War Department distributed a manual recommending that citizens keep guerrilla weapons on hand.84 Certainly the militia could not defend against intercontinental ballistic missiles, but it could keep order at home after a limited attack. In case of conventional war, the militia could guard against foreign invasion after the army and the National Guard were sent into overseas combat. Especially given the absence of widespread military service, individual Americans familiar with using their private weapons provide an important defense resource. 85 Canada already has an Eskimo militia to protect its northern territories. 86 It has been more than 40 years since the last invading troops left American soil. No invasion is plausible in the foreseeable future. Is it now possible to state with certainty that America is so omnipotent, and the nuclear umbrella so perfect that America will never again need the militia, and that Americans should jettison their tradition of learning how to use arms that would be useful for civil defense? In the unlikely event that the United States were ever subjugated by a foreign or domestic tyrant, could citizens actually resist? Recent history suggests that the answer is "yes". Or course, ordinary citizens are not going to grab their "Saturday night specials" (or even their "assault weapons") and charge into oncoming columns of tanks. Resistance to tyranny or invasion would be a guerrilla war. In the early years of such a war, before guerrillas would be strong enough to attack the occupying army head on, heavy weapons would be a detriment, impeding the guerrillas' mobility. As a war progresses, Mao Zedong explained, the guerrillas use ordinary firearms to capture better small arms and eventually heavy equipment. 87 The Afghan mujahedeen were greatly helped by the belated arrival of Stinger antiaircraft missiles, but they had already fought the Soviets to draw using a locally made version of the outdated Lee-Enfield rifle. 88 One clear lesson of this century is that a determined guerrilla army can wear down an occupying force until the occupiers lose spirit and depart _ just what happened in Ireland in 1920 and Palestine in 1948 (and American in 1783). As one author put it: "Anyone who claims that popular struggles are inevitably doomed to defeat by the military technologies of our century must find it literally incredible that France and the United States suffered defeat in Vietnam... that Portugal was expelled from Angola; and France from Algeria." 89 If guns were not useful in a popular revolution, it would be hard to explain why dictators as diverse as Ferdinand Marcos, Fidel Castro, Idi Amin, and the Bulgarian communists have ordered firearms confiscation upon taking power. 90 In sum, American citizens can and do use "assault weapons" successfully to protect themselves against domestic chaos when local police forces cannot or will not protect them. In the unlikely event that Americans were threatened by hostile foreign or domestic governments, "assault weapons" would be useful, and citizen resistance might well prove successful. If "military" arms, such as the assault rifles carried by the federal standing army, are precisely what the Constitution protects, it may be asked where the upper boundary lies _ at grenade launchers, anti-aircraft rockets, tanks, battleships, or nuclear weapons. To begin with, the phrase "keep and bear" limits the type of arm to an arm that an individual can carry. Things which an individual cannot bear and fire (like crew-served weapons) would not be within the scope of the Second Amendment. Nor would things which bear the individual, instead of being borne by him or her. Thus, tanks, ships, and the like would be excluded. In addition, if a hand-carried weapon is not "part of the ordinary military equipment" (as the Supreme Court put it in Miller ), then the weapon might not have a reasonable relationship to the preservation of a well-regulated militia; hence its ownership would not be protected. Since American soldiers do not carry nuclear weapons, such weapons would not be within the scope of the Second Amendment. Perhaps the Supreme Court will one day further elaborate the boundaries of the Miller test. Soldiers do carry real assault files (namely M16s), and it would therefore seem that such weapons would fit with the Miller test. In early 1991, the Supreme Court declined to hear a case involving the prohibition of machine-guns produced after 1986. Handgun Control, Inc. immediately announced that the Supreme Court had validated the ban, although the Court had done so such thing. As the Supreme Court itself has stated, however, a denial of review has no presidential effect and is not a decision on the merits. 92 As this Issue Paper is written, the Constitutionality of the 1986 federal ban is unclear. In the case that the Supreme Court declined to hear, the federal trial court had interpreted the relevant statute as not being a ban, but only a licensing requirement. The trial court had said that if the statute were to be read as a ban, it would be unconstitutional. 93 The 11th Circuit Court of Appeals reversed on the statutory interpretation issue, and did not address the Constitutional question. In the meantime, a federal district court in Illinois found the ban unconstitutional on the grounds that Congress' enumerated powers did not include the banning of firearms. 94 Even if the machine gun issue remains in a Constitutional limbo, the semiautomatic issue need not. The bias on which machine guns may be considered distinguishable from other guns is their capability of rapid, automatic fire. All semiautomatic firearms lack this capability, and according to the Bureau of Alcohol, Tobacco and Firearms, it is quite difficult to convert semiautomatics to automatic. 95 In fact, semiautomatic rifles may fire less rapidly than traditional pump action shotguns, 96 and there is no dispute that traditional pump action shotguns fall within the scope of the right to bear arms. The "assault weapon" controversy wears the mask of a crime control issue, but it is in reality a moral issue. Regardless of whether "assault weapons" are a serious crime problem, and regardless of whether prohibitions will reduce criminal use of the guns, such weapons have no legitimate place in a civilized society _ or so many gun prohibitionists feel. These prohibitionists do not trust their fellow citizens to possess "assault weapons"; but astonishingly, they do trust the government to possess such guns. "Government is the great teacher," said the late Justice Brandeis. What lesson does government teach when police chiefs insist that "assault weapons" have no reasonable defensive use, and are evil machines for killing many innocent people quickly _ but that prohibitions on these killing machines should not apply to the police? Are massacres acceptable if perpetrated by the public sector? 97 The exemption cannot be logically defended. If "assault weapons" can legitimately be used for police protection of self and others, then a ban on those guns cannot be Constitutionally applied to ordinary citizens, because ordinary citizens have a right to bear arms for personal defense, and like police, face a risk of being attacked by criminals. (And unlike police, ordinary citizens cannot make a radio call for backup that will bring a swarm of police cars in seconds.) Conversely, are "assault weapons," as some police administrator insist, only made for slaughtering the innocent? If so, such killing machines have no place in the hands of domestic law enforcement. Unlike in less free countries, police in this country do not need highly destructive weapons designed for murdering innocent people. The arrogance of power manifested by police chiefs such as Daryl Gates in their drive to outlaw semiautomatics for everyone but themselves is reason enough for a free society to reject gun prohibition. 98 In Maryland, the police staged an illegal warrantless raid on gun rights group's office the night before a gun control referendum. 99 The pro-Second Amendment protesters picketed at the state capitol, Governor Donald Schaefer's police photographed them. 100 The police-state tactics in Maryland led one newspaper (which favors gun control as a substantive matter), to note "Just because you're paranoid doesn't mean they're not out to get you." The paper labeled the tactics of Governor Schaefer and his police (including the illegal warrantless raid, the photographing of protesters, and a late night surprise visits to a critic's home) a validation of the paranoid world-view allegedly held by proponents of the rightt bear arms. 101 Is the Maryland police hierarchy the kind of government agency that should be trusted to disarm citizens, while it keeps "assault weapons" for itself? After the Tiananmen Square massacre, the response of the National Rifle Association was to purchase print advertisements suggesting the core purpose of the Second Amendment is resistance to tyranny. The response of Chicago police chief LeRoy Martin _ a vociferous advocate of gun prohibition _ was to accept a paid trip to China from the Communist government. Upon returning, Chief Martin pronounced his admiration for the Chinese system of criminal justice, and suggested that in the United States zones should be created where the Constitution would be suspended. Is LeRoy Martin the kind of police chief who should be trusted to enforce an "assault weapon" ban, while he keeps such weapons for himself? Of course even despite the excesses of the drug war, most of the Bill of Rights remains intact. Elections will take place as scheduled in 1992, and there is no plausible claim that it would be appropriate to take up arms against the federal government. Can the gun prohibition movement guarantee that this happy state will persist forever? In 1900, Germany was a democratic, progressive nation. Jews living there enjoyed fuller acceptance in society then they did in Britain, France, or the United States. Thirty-five years later, circumstances had changed. The Holocaust was preceded by the Nazi government's enactment of the strictest gun controls of any industrial nation. 102 The prospect of a dictatorial American government thirty-five years from now seems almost impossible. What about a hundred years from today? Two hundred? The Bill of Rights attempted to enshrine for all time the principle that the government should not be able to overpower the people. On the 200th anniversary of the Bill of Rights, should that principle be discarded forever? Do government officials like Daryl Gates, Donald Schaefer, and LeRoy Martin inspire confidence that the government may always be trusted? Before rejecting the United States Constitution's bedrock principle that the people are more trustworthy than the government, it would be wise to consider the words of the late Vice President Hubert Humphrey: "The right of citizens to bear arm is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible. 103 The asserted major concern of legislators passing "assault weapon" legislation is the criminal misuse of these firearms. Proposed legislation, to be effective must directly target this misuse. Legislators should consider the following proposals: A. Fund the appointment of at lease one Assistant U.S. Attorney in each District to prosecute felon-in-possession cases involving violent offenses under 18 U.S.C. 924 and relevant sections of the Firearms Owners' Protection Act, Public Law 99-308. More consistent enforcement of existing statutes would directly target criminal misuse of all firearms. States and localities could also assign prosecutors to felons using firearms to perpetrate violent crimes. B. Fund the creation of new prison facilities dedicated to violent repeat felony offenders. Reallocate existing prison capacity to that same end. Prison facilities must be adequate to insure that those convicted of the criminal misuse of firearms actually serve the sentences. C. Reform and streamline probation revocation. If a person already eligible for probation revocation commits a violent armed felony, probation should be revoked immediately. This reform would have prevented a career criminal named Eugene Thompson from perpetrating a murder spree in the suburbs south of Denver in March 1989. 104 D. Create a task force that will exert informal pressure on the entertainment industry to encourage industry officials to reduce the portrayal of criminal misuse of firearms. Beginning in 1983, prime-time television show such as The A Team, Wise Guy, Hardcastle & McCormack, Riptide, 21 Jump Street, and Miami Vice have filled American homes with the depiction of criminal misuse of "assault weapons." 105 while direct links between these portrayals and criminal violence may be difficult to establish, at least one study has linked television and movie depictions of "assault weapons" to increased sales of those weapons. 106 Dr. Park Dietz, the specialist in violent behavior who conducted this recent study, called NBC's Miami Vice "the major determinant of assault gun fashion for the 1980's." 107 Research by the University of Washington's Brandon Centerwall has found a cause and effect relation between television violence and homicide. 108 A task force could draft voluntary guidelines limiting the depiction of the misuse of military-style semiautomatics, and the task force, along with interested citizens' groups, could exert informal pressure on industry officials to conform to these guidelines. And at the very least, the film/television industry exemption from existing state and local "assault weapon" bans should be removed. Film-makers who glorify mindless violence encourage far more gun misuse than do ordinary citizens who quietly own a firearm for sports or self-defense. 109 The solutions suggested above will not cure the problem of armed crime. But they will make the problem better, whereas, "assault weapon" prohibition will make the problem worse. CONCLUSION "Assault weapon" legislation appears to offer several political advantages. This legislation allow its proponents to appear "tough on crime and drugs," to garner to the applause of the establishment media, and to exploit the political potential latent in the emotion surrounding tragic events such as the Stockton shootings. At the same time, "assault weapon" legislation requires no fiscal outlay. Unfortunately, "assault weapon" legislation is unconstitutional. Second Amendment jurisprudence establishes an individual right to bear arms that protects the possession of military-style semiautomatics. While "assault weapon" legislation may not unduly impinge the privilege to hunt ducks, it strikes at the heart of the right to defend home, person and property against criminal individuals and criminal governments. The "assault weapon" controversy poses a litmus test for continued adherence to the principles on which the United States was founded. Shall citizens retain the power claimed in the Declaration of Independence to "alter or abolish" a despotic government? The claims that certain politically incorrect semiautomatic firearms are machine-guns, are the weapon of choice of criminals, have a uniquely high ammunition capacity, or cause uniquely destructive wounds are a hoax. Although the gun prohibition lobby managed to generate a few months of national panic in early 1989, only two state legislatures decided to adopt "assault weapon" legislation. In one state (California), the Attorney General has found that most of the law is so ineptly drafted as to be unenforceable. The more that legislatures examine the facts, the more apparent the gun prohibition lobby's fraud becomes. The Great "Assault Weapon" Panic of 1989 deserves a place alongside Senator Joseph McCarthy's list of State Department Communists and the Tawana Brawley kidnapping as one of America's greatest political hoaxes. When hysteria is replaced by analysis, the gun prohibition lobby's fraud becomes apparent. Despite their "evil" appearance, so-called "assault weapons" are no more dangerous than many non-semiautomatics. According to empirical evidence and police experience, the guns are not the weapons of choice of drug dealers or other criminals. Even if these guns played a significant role in violent crime, sociological evidence suggests that "assault weapon" legislation would not reduce the criminal misuse. To limit the criminal misuse of firearms, legislators must take the more difficult and costly steps of providing sufficient funding to the prosecutors and prisons that directly confront the problems of firearms misuse. While these measures may not seem as simple as passing a severe "assault weapon" prohibition, an effective firearms policy _ one that preserves basic Constitutional rights _ will be logical, legal, and moral, and well worth the effort. Footnotes 1. Thomas Jefferson advised his nephew: "Games played with a bat and ball are too violent, and stamp no character on the mind... [A]s to the species of exercise, I advise the gun." J. Foley, THE JEFFERSON ENCYCLOPEDIA (1967), at 318. Were Jefferson to visit a high school shooting competition, and then a high school football game where student cheered as a player was slammed to the ground, Jefferson might think his earlier view confirmed. 2. Because of budget constraints, the DCM program will lose its federal subsidy. That the program must become financially self-sufficient does not prove that it is no longer important. Many important federal programs, such as aviation safety and airport construction, are financed by user fees. 3. It might be interesting to ask the anti-gun lobby why a gun designed to kill an innocent game animal is more legitimate than a gun designated to protect an innocent human being against a criminal attack. 4. U.S. CONST. amend. II. 5. Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857) (If free Blacks were citizens, they would have the right "to carry arms wherever they went."); United States v. Cruikshank, 92 U.S. 542, 551-53 (1876) (The Second Amendment right to bear arms, like the First Amendment right to assemble, was not granted by the Constitution, but was merely recognized by that document, since arms bearing and assembly are both fundamental human rights that are "found wherever civilization exists."); Robertson v. Baldwin, 165 U.S. 275, 281-82 (1896) (In this case, the Court wrote "The right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons." The obvious implication is that laws prohibiting the carrying of unconcealed weapons would violate the Second Amendment, a fact that could only be true if the Amendment recognized an individual right); United States v. Miller, 307 U.S. 174 (1938 (discussed extensively below); Moore v. East Cleveland, 431 U.S. 494, 502 (1976) ("the freedom of speech, press, and the religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures" are part of the "full scope of liberty" guaranteed by the Constitution and made applicable against the states by the due process clause of the 14th amendment); United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 1061 (1990) ("[T]he 'people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of the community.") 6. As the Senate Subcommittee on the Constitution noted in 1982, "The Framers of the Bill of Rights consistently used the words 'right of the people' to reflect individual rights _ as when these words were used to recognize the 'right to the people to peaceably assemble'" in the first amendment. 7. Eighty-nine percent of Americans believe that as citizens they have a right to own a gun, and 87 percent believe the Constitution guarantees them a right to keep and bear arms. J. Wright, P. Rossi, and K. Daly, UNDER THE GUN: WEAPONS, CRIME AND VIOLENCE IN AMERICAN 229 (1983), quoting survey conducted by Decision-Making Information Inc. 8. The most recent endorsements of the individual right position appear in Amar, The Bill of Rights as a Constitution, 100 YALE L. J. 1131, 1164ff (1991) and Scarry, War and the Social Contract: Nuclear Policy, Distribution, and The Right to Bear Arms, 139 U. PENN. L. REV. 1257 (1991). Similar conclusions were reached in the overwhelming majority of scholarly writing in the 1980s, of which the following is only a partial list: Levinson, The Embarrassing Second Amendment, 99 YALE L. J. 637 (1989); S. Halbrook, A Right To Bear Arms: State and Federal Bills Of Rights And Constitutional Guarantees (1989); L. Levy, Original Intent and the Framers' Constitution 341 (1988); Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J. L. & POL'Y 1 (1987); Lund, The Second Amendment, Political Liberty and the Right to Self-Preservation, 39 ALA. L. REV. 103 (1987); Shalhope, The Armed Citizen in the Early Republic, 49 LAW & CONTEMP. PROBS. 125 (1986); Kates, A Dialogue on the Right to Keep and Bear Arms 49 LAW & CONTEMP. PROBS. 143 (1986); 4 Encyclopedia of the American Constitution 1639-40 (Karst & Levi eds. 1986); Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J. L. & PUB. POL'Y 559 (1986); Marina, "Weapons, Technology and Legitimacy: The Second Amendment in Global Perspective" in Firearms and Violence: Issues of Public Policy (D. Kates, ed. 1984); Dowlut, The Current Relevancy of Keeping and Bearing Arms, 15 U. BALT. L. REV. 32 (1984); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH L. REV. 204, 244-52 (1983); Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Perspective, 10 HAST. CONST. L. Q. 285 (1983); Dowlut, The Right to Arms, 36 OKLA. L. REV. 65 (1983); Senate Subcomm. on the Constitution of the Comm. on the Judiciary, 97th Cong., 2d Sess., The Right To Keep and Bear Arms (1982); Caplan, The Right of the Individual to Bear Arms, 1982 DET. COLL. L. REV 789 (1982); Gardiner, To Preserve Liberty _ A Look at the Right to Keep and Bear Arms, 10 N. KY. L. REV. 63 (1982); Note, Gun Control: Is It A Legal and Effective Means of Controlling Firearms in the United States?, 21 WASHBURN L.J. 244 (1982); Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM HIST. 599 (1982); Cantrell, The Right to Bear Arms, 53 WIS. BAR B. 21 (1980). It appears that only five articles from the last decade which approximate support of the prohibitionist, anti-individual position. Significantly, even one of these rejects the states' right view. Beschle, Reconsidering the Second Amendment: Constitutional Protection for a Right of Security, 9 HAMLINE L. REV. 69 (1986) concedes that the Amendment does guarantee a right of personal security, but argues that the right can constitutionally be implemented by banning and confiscating all guns. The others are Fields, Guns, Crime and the Negligent Gun Owner, 10 N. KY. L. REV. (1982) (article by a non-lawyer spokesperson for the National Coalition to Ban Handguns); Spannaus, State Firearms Regulation and the Second Amendment, 6 HAMLINE L. REV. 383, (1983); Cress, An Armed Community: The Origins and Meaning of the right to Bear Arms, 71 J. AM. HIS. 22 (1983); Ehrman & Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately? 15 DAYLTON L. REV. 5 (1990) (employee of Handgun Control, Inc.). 9. Madison's original structure of the Bill of Rights did not place the amendments together at the end of the text of the Constitution (the way they were ultimately organized); rather, he proposed interpolating each amendment into the main text of the Constitution, following the provision to which it pertained. If he had intended the Second Amendment to be mainly a limit on the power of the federal government to interfere with state government militias, he would have put it after Article 1, section 8, which granted Congress the power to call for the militia to repel invasion, suppress insurrection, and enforce the laws; and to provide for organizing, arming, and disciplining the militia. Instead, Madison put the right to bear arms amendment (along with the freedom of speech amendment) in Article I, section 9 _ the section that guaranteed individual rights such as habeas corpus. Donald B. Kates, "Second Amendment," in Encyclopedia of the American Constitution, ed. Leonard Levery (New York: MacMillan, 1986), p. 1639. See also Robert Shalhope, "The Ideological Origins of the Second Amendment," 69 Journal of American History (December 1982): 599-614; Joyce Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition," Hastings Constitutional Law Quarterly 10 (Winter 1983): 285-314. See also discussion below, and legal scholarship cited in previous note. 10. See, e.g., Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J. L. & PUB. POL'Y 559, 560 (1986). This article provides a summary of contemporary interpretations of the Second Amendment and a thorough discussion of the intent of its framers. 11. SENATE SUBCOMM. ON THE CONSTITUTION OF THE COMM. ON THE JUDICIARY, 97th Cong., 2d Sess., THE RIGHT TO KEEP AND BEAR ARMS 6 (Comm. Print 1982) [hereinafter SUMCOMM. ON THE CONSTITUTION]. 12. Id. The English background of the individual right to possess weapons dates back to the reign of King Alfred the Great in 690 A.D. Hardy supra note 10, at 562. Under King Alfred, every free male was required by law to possess the weapons of an infantryman and serve in the citizen militia (although the word "militia" itself was not used until the late 16th century). In 1181, King Henry II's Statute of Assize of Arms ordered all freemen to bear arms for national defense. The Assize required every freeman to "bear these arms in his [Henry II's] service according to his order and in allegiance to the lord King and his realm." The Assize was based on the old Saxon tradition of the fyrd, in which every male aged 16 to 60 bore arms to defend the nation. Statute of Assize of Arms, Henry II, art. 3 (1181); Robert W. Coakley and Stetson Conn, The War of the American Revolution (Washington: Center of Military History United States Army, 1975), at 2. Complaining about an increase in crime, Edward I enacted the Statute of Winchester, which required "every man," not just freemen, to have arms. The types of arms required to be owned by the poorest people were Gisarmes (a type of pole-ax), knives, and bows. Another anti-crime measure in the statute ordered local citizens to apprehend fleeing criminals, and established night watches. 13 Edward I chapter 6 (1285). By the late 16th century, gun ownership had become mandatory for all adult males _ for anti-crime purposes, and for the defense of the realm. Arms were necessary so that all citizens could join in the hutesium et clamor (hue and cry) to pursue fleeing criminals; indeed, citizens were legally required to join in. Any person who witnessed a felony could raise the hue and cry. Frederick Pollock and Frederic W. Maitland, The History of English Law before the Time of Edward I (Cambridge: Cambridge University Press, 1911, 2d ed., 1st pub. Cambridge, 1895), II, chapter IX, paragraph 3, pp. 578-80; Blackstone, IV, pp. *293-94; Statute of Winchester, 13 Edward I, chapter 1 & 4; Bradley Chaplin, Criminal Justice, in Colonial America, 1606-1660 (Athens: University of Georgia Press, 1983), p.31, citing Michael Dalton, The Country Justice, Containing the Practice of Justices of the Peace out of the Their Sessions (London: 1619), p. 65, and Ferdinando Pulton, De Pace Regis Regni Viz A Treatis declaring which be the great and generall offences of The Realme, and the chiefe impediments of the pace of The King and The Kindom (London: 1609), pp. 152-56. The English Bill of Rights of 1689 recognized a right to bear arms, albeit one subject to limitation. "The subjects which are Protestants may have arms for their defence suitable to their conditions as and allowed by law." Bill of Rights of 1689, 1 William & Mary, sess. 2 chapter 2. 13. "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2. and is 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." William Blackstone, Commentaries on the Laws of England, I (Chicago: University of Chicago Press, 1979) (facsimile of First Edition of 1765-1769), p. 139. 14. Blackstone, IV, p. *82. 15. Hardy, supra note 10, at 588. 16. Id. 17. Between 1620 and 1775, "almost the entire mail population of New England actively participated in the militia." Marie Ahearn, The Rhetoric of War: Training Day, the Militia, and the Military Sermon (Westport, Connecticut, Greenwood Press, 1989), p. 2. 18. Essex Gazette, April 25, 1775, p. 3, col. 3; Coakley and Conn, pp. 25-26. 19. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bill of Rights, 41 BAYLOR L. REV. 629, 636 (1989). 20. "The experience of the Revolution thus strengthened the colonial perception of a link between individual armament and individual freedom. The colonists, who perceived themselves as staunch Whigs, continued to see free individual armament as Whig dogma." Hardy, 10, at 593. 21. Daniel Boorstin, The Americans: The Colonial Experience 370 (1965). See also William Marina and Diane Cuervo, "The Dutch-American Guerrillas of the American Revolution," in ed. Gary North, The Theology of Christian Resistance: A Symposium, vol. 2 of Christianity and Civilization (Tyler, Texas: Geneva Divinity School Press, 1982): 242-65. 22. Hardy, supra note 10, at 600-15. 23. Id. at 600. 24. Id. at 600-15. 25. W. Bennett, ed., Letters from the Federal Farmer to the Republican 21, 22, 124 (1975). Lee sat in the Senate that ratified the Second Amendment. SUBCOMMITTEE, supra note 11, at 5. 26. Hardy, supra note 10, at 599. 27. N. Webster, "An Examination into the Leading Principles of the Federal Constitution," in P. Ford, ed., Pamphlets on the Constitution of the United States 56 (1888). 28 . The Federalist, No. 46 (J. Madison. At the time Madison wrote, "half a million citizens" amounted to almost the entire adult white male population. 29. The Federalist, no. 28 (A. Hamilton). 30. The Federalist, no. 29 (A. Hamilton). 31. Hardy, supra note 10, at 604. 32. H. R. DOC. NO. 398, 69th Cong., 1st Sess. 1026 (1927). 33. Id. 34. Quoted in ed. Morton Borden, The Antifederalist Papers, vol. 3 (East Lansing: Michigan State University Press), p. 386. 35 . "State conventions had made no fewer than five appeals for such a right; such accepted rights as freedom of speech, of confrontation, and against self-incrimination could boast but three endorsements." Hardy, supra note 10, at 604. 36. SUBCOMM. ON THE CONSTITUTION, supra note 11, at 6. 37. Quoted in Clinton Rossiter, The Political Thought of the American Revolution (New York: Harcourt, Brace and World, 1953), pp. 126-27. 38. Quoted in Borden. 425. 39. House Report No. 141, 73d Cong., 1st sess. (1933), pp. 2-5. Congress did so in order that the National Guard could be sent into overseas combat. The National Guard's weapons cannot be the arms protected by the Second Amendment, since Guard weapons are owned by the federal government. 32 U.S.C. paragraph 105[a][1]. 40. Subcommittee on the Constitution, at 11. "There can be little doubt... that when the Congress and the people spoke of a 'militia,' they had reference to the... entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard... When the framers referred to the equivalent of our National Guard, they uniformly used the term 'select militia' and distinguished this from 'militia'. Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to,