Should America ban guns?

[AresKrieger]

Depends on the definition (killed or shot), but about 1 per day on average. *Various news sources.

The answer is actually 4 , unless you count gang on gang violence with 3 or more wounded, which the FBI does now due to political BS.

 

The recent incident in California, The Oregon College shooting, an attack a a military Facility in Tennessee, and the Charlestown Church massacre

[Real_PhillBert]

I have a question to anyone still following this thread, How many mass shootings has america had this year? I wonder how you'll answer.

 

There is no widely accepted definition of "Mass Shooting." Although the 355 or one per day is more propaganda than fact. Even the NY times thinks those numbers are bogus.

 

http://www.nytimes.com/2015/12/04/opinion/how-many-mass-shootings-are-there-really.html?_r=0

 

Somewhere between 4 and 10 would be more factually correct.

[AresKrieger]

There is no widely accepted definition of "Mass Shooting." Although the 355 or one per day is more propaganda than fact. Even the NY times thinks those numbers are bogus.

 

http://www.nytimes.com/2015/12/04/opinion/how-many-mass-shootings-are-there-really.html?_r=0

 

Somewhere between 4 and 10 would be more factually correct.

Correct from my perspective, 4 for sure and some other possible incidents, if we used the new metrics certain years in the 80s and 90s would have over 1000 (aka the media bs)

[stconquest]

No offense you two...

 

How about you come to some sort of conclusion?  Maybe a reason for defining "mass shooting" the way you do?

 

Whether your definition of mass shooting results in 4 for the year or 304, the dead and shot are still dead and shot. 

[BobbyG2]

I heard from somewhere that the ISIS sympathizers were planning to hit two times in Texas before hitting Cali. They attempted to hit a "draw Muhammed" event but ended up with two dead terrorists and 0 dead civilians, thanks to the high percentage of armed civilians than. I guess they learned their lesson there as they skipped the second attack in Texas they had planned.

Their attack in California resulted in 30 victims, and they even had enough time to go home and resupply before the police even showed up.

My point is that relying on the police with a 12+ minute response time is hopeless. 12 minutes is plenty of time for a shooter too kill everyone in an area. We need more armed good semaritans.

[SansVarnic]

Here is the thing.

America is unable to place a ban on guns period. The constitution in it current form prevents this.

The debate on a gun ban is not pointless but essentially a waste of time for the most part. The time, the undertaking, the massive amount of cooperation it will take to accomplish a goal of changing the constitution is tremendous not to mention nearly impossible in today's politics. The process to change or add an amendment takes about 4-7 years but cannot exceed 7 years or the process is considered null by law and must be restarted.

 

Please read the spoiler or click the following link; https://www.archives.gov/federal-register/constitution/

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.

In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.

 

 

 

As long as the US government continues to take a lenient stance on criminal behavior it is a better bet to allow its civilian population the means and choice to self defense and how that self defense is carried out. I will be the first to point out that I personally don't need a gun to defend my person but I am not willing to limit myself our others the means to a more efficient and effective method and other people may not be willing to make the same proclamation about themselves.

If those in this forum (and those that at are not) need to stop spouting on opinion about the US gun laws its cultural take on guns and take a look at the history involved in why the US Constitution contains the first 2 amendments that it has. There is a reason for it.  http://www.constitution.org/2ll/2ndschol/89vand.pdf

use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285
Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]
THE HISTORY OF THE SECOND AMENDMENT
DAVID E. VANDERCOY*
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.1
I. INTRODUCTION
Long overlooked or ignored, the Second Amendment has become the object of some study
and much debate. One issue being discussed is whether the Second Amendment recognizes the right
of each citizen to keep and bear arms,2
or whether the right belongs solely to state governments and
empowers each state to maintain a military force.3
The debate has resulted in odd political alignments which in turn have caused the Second
Amendment to be described recently as the most embarrassing provision of the Bill of Rights.4
Embarrassment results from the politics associated with determining whether the language creates
a state's right or an individual right. Civil libertarians support the individual rights recognized in the
First, Fourth, Fifth, and Sixth Amendments and defend these rights against governmental abuse.
Civil libertarians insist that each citizen be accorded the right to free speech, even if the citizen is
a Nazi hatemonger. Similarly, criminals can count on a vigorous defense of the fourth amendment
right to be free from unreasonable searches as well as the fifth amendment right not to incriminate
oneself. All of this is true even though most of us would (pg.1008) agree that Nazi hate language is of
no utility, and a criminal's confession, absent coercion, and the fruits of a search of his or her house
are among the best indicators of actual guilt or innocence. Yet, we zealously defend these rights on
the premise that governmental abuse of power is a greater evil than that posed by individual
hatemongers or criminals.
5 See Don P. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L.REV.
204, 207 (1983). The ACLU's summary of its national board's action at the June 14-15, 1980, meeting sets out the following policy
considerations:
The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear
arms is a collective one existing only in the collective population of each state for the purpose of maintaining
an effective state militia.
The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that
the individual's right to bear arms applies only to the preservation of efficiency of a well regulated militia. Except
for lawful police and military purposes, the possession of weapons by individuals is not constitutionally
protected. Therefore there is no constitutional impediment to the regulation of firearms.
Nor does the ACLU believe that there is a significant civil liberties value, apart from the Second
Amendment, in an individual right to own or use firearms. Interests of privacy and self expression may be
involved in any individual's choice of activities or possessions, but these interests are attenuated when the
activity, or the object sought [sic] to be possessed is inherently dangerous to others. With respect to firearms,
the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the
individual's interest in freedom of choice.
Id. at 207 n.15. At the same meeting, the board approved the following clarification: "It is the sense of this body that the word
'justifies' in the policy means we will affirmatively support gun control legislation." Id.
6 George Washington further stated, "It is at all times difficult to draw with precision the line between those rights which
must be surrendered, and those which may be preserved ...." See Letter from George Washington to the President of Congress (Sept.
17, 1787) in 1 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 305 (John P. Kaminski et al. eds., 1983).
In the context of the Second Amendment, civil libertarian instincts are overcome by our fear
of one another. As a consequence, we find civil libertarian organizations, such as the American Civil
Liberties Union (ACLU), acting as participants in such groups as the National Coalition to Ban
Handguns.5
Indeed, the ACLU, typically at the forefront of defending individual rights against an
encroaching government, takes the position that the Second Amendment protects only the state's
right to an organized military—a well-regulated militia. It rejects any suggestion that the Second
Amendment protects an individual right.
While this phenomenon is interesting, it is not the subject of this Article. My purpose is much
narrower. I will address the history of the Second Amendment and attempt to define its original
intent. I will not suggest that original intent is controlling. On this point, I am reminded that George
Washington once suggested, "Individuals entering into society, must give up a share of liberty to
preserve the rest. The magnitude of the sacrifice must (pg.1009) depend as well on situation and
circumstance, as on the object to be obtained."6
The purpose of this Article is only to define those shares of liberty the Framers intended to
retain and those given up in the context of the Second Amendment. By way of preview, this Article
will contend that the original intent of the Second Amendment was to protect each individual's right
to keep and bear arms, and to guarantee that individuals acting collectively could throw off the yokes
of any oppressive government which might arise. Thus, the right envisioned was not only the right
to be armed, but to be armed at a level equal to the government.
To determine the original intent of the Second Amendment, this Article will examine the
history of armed citizens in England, the Federalist and Antifederalist debates, the meaning of the
word "militia," the constitutional ratification process, and the various state constitutions in existence
at the time.
7 See JOHN P. REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY CONTROVERSY, THE TWO CONSTITUTIONS, AND
THE COMING OF THE AMERICAN REVOLUTION 79-85 (1981).
8 1 WILLIAM BLACKSTONE, COMMENTARIES *320 [hereinafter COMMENTARIES].
9 See generally Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 MICH.L.REV. 1493
(1969) (explaining that the existence of a standing army during peacetime was widely condemned as a threat to liberties).
10 Id.
11 COMMENTARIES, supra note 8, at *321.
12 David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV.J.L.
& PUB. POL'Y 559, 562 (1986) [hereinafter Hardy, Armed Citizens].
13 William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 MIL.L.REV. 1, 8 (1992).
14 See Arthur Allen Leff, The Leff Dictionary of Law: A Fragment, 94 YALE L.J. 1855, 2078 (1985).
15 2 ENGLISH HISTORICAL DOCUMENTS 416 (David C. Douglas & George W. Greenaway eds., 1953) [hereinafter
ENGLISH].
16 See 1 FREDERICK POLLOCK &FREDERIC W.MAITLAND,THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD
I 421-42, 565 (1968).
17 David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & POL. 1, 7 (1987)
[hereinafter Hardy, Historiography].
18 Id.
II. THE RIGHTS OF ENGLISHMEN
Eighteenth-century commentators frequently discussed the evils of standing armies.7
Blackstone observed that professional soldiers endangered liberty.8
In free states, the defense of the
realm was considered best left to citizens who took up arms only when necessary and who returned
to their communities and occupations when the danger passed.9
Standing armies were viewed as
instruments of fear intended to preserve the prince.10
A. The Establishment of the English Citizen Army
Blackstone credits King Alfred, who ruled England from 871 to 901 A.D., as establishing
the principle that all subjects of his dominion were the realm's soldiers.11 Other commentators trace
the obligation of Englishmen to serve in (pg.1010) the people's army to 690 A.D.12 Regardless of the
beginning date, an Englishman's obligation to serve in a citizen army is an old proposition. Coupled
with this obligation to defend the realm was the obligation to provide oneself with weapons for this
purpose.13
King Henry II formalized his subjects' duties in 1181 by issuing the Assize of Arms.14 The
arms required varied depending on the subjects' wealth, with the poorest freemen obligated to
provide the least—an iron helmet and a lance.15 The Assize required not only arms to be possessed,
but precluded the possessor from selling, pledging, or in any other way alienating the weapons.16 In
1253, the armed population was expanded beyond freemen to include serfs, individuals bound to the
land and the land's owner.17 Serfs were required to procure a spear and dagger.18
Inclusion of serfs in the citizen army was related to the mustering of men and arms which
occurred early in 1253 for purposes of crossing the sea to Gascavy and supporting the realm against
19 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 141 (Carl Stephenson & Frederick G. Marcham eds., 1937)
[hereinafter SOURCES].
20 Id. at 163.
21 3 Hen. 8, ch. 13 (1511).
22 Id.
23 SOURCES, supra note 19, at 397.
24 See, e.g., SOURCES, supra note 19, at 396 (Records Concerning the Militia (1539-1577)).
25 Id. at 397 (Instructions for General Musters (1572)).
26 Id. at 396.
27 JOHN FORTESCUE, THE GOVERNANCE OF ENGLAND, otherwise called THE DIFFERENCE BETWEEN AN ABSOLUTE AND
A LIMITED MONARCHY 114-15 (C. Plummer ed., rev. ed. 1885). Fortescue saw Englishmen as healthy, wealthy, and well armed,
"wherefore thai ben myghty, and able to resiste the adversaries of this realme, and to beet oper reaumes that do, or woldee do them
wronge. Lo, this is the fruty of Jus polliticum et regale, under which we live." Id.
28 In 1539, the French ambassador reported that "in Canterbury, and the other towns upon the road, I found every English
subject in arms who was capable of serving. Boys of 17 and 18 have been called out without exception of place or person ...." L.
BOYNTON, THE ELIZABETHAN MILITIA 8-9 (1967).
29 See generally 3 THOMAS BABBINGTON MACAULAY, THE HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES THE
SECOND 47 (1900) (1st ed. 1849) (discussing English acceptance of a standing army by the end of the Tudor period).
the King of Castile.19 Another general levy occurred in 1297, which directed all men possessing land
to a value of twenty pounds to provide themselves with horses and arms and to come to London for
purposes of service in France.20
B. The Tudor Period
The citizen-army concept continued to develop through the Tudor period. Henry VIII decreed
that fathers must purchase longbows for sons between seven and fourteen years of age and teach
them to shoot.21 Each citizen between the age of fourteen and forty years was required to own and
use a longbow unless (pg.1011) disabled.22 Queen Elizabeth I formalized the process by issuing
instructions for general musters of the citizen army in each county.23 Commissions were issued to
various knights to take charge of such musters.24 The purpose of the musters was to enable Queen
Elizabeth to know the "numbers, qualities, abilities and sufficiency of all her subjects in that county
..., from the age of sixteen years upward, that may be found able to bear armour or to use weapons
on horseback or on foot."25 The citizen army, during Queen Elizabeth's reign, acquired the name
"militia."26
By the end of the Tudor period, the citizen army or militia concept had become a fixed
component in English life. The period's commentators attributed English military successes to the
universal armament practice prevalent in England but absent on the continent.27 Visitors from the
continent even noticed the stark difference.28 Historians suggested that English universal armament
caused a moderation of monarchial rule and fostered individual liberties because the populace had
in reserve a check which soon brought the fiercest and proudest King to reason: the check of physical
force.29 However, the virtues of universal armament and the effect of universal armament on
monarchial rule had not escaped Parliament's notice.
C. The Stuart Period
30 See H. LASKI, THE RISE OF EUROPEAN LIBERALISM (1936); John V. Orth, North Carolina Constitutional History, 70
N.C. L. REV. 1759, 1765 (1992).
31 See THE PARLIAMENT OF WONDERS: COMMON DEBATES 1628 (Robert C. Johnson et al. eds., 1977) [hereinafter
PARLIAMENT].
32 Id.
33 For a general discussion of this area, see 8 SAMUEL R. GARDINER, HISTORY OF ENGLAND FROM THE ACCESSION OF
JAMES I TO THE OUTBREAK OF THE CIVIL WAR 1603-1642 (1965).
34 Id.
35 SOURCES, supra note 19, at 406-07.
36 SOURCES, supra note 19, at 412-13.
37 Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2
HASTINGS CONST.L.Q. 961, 966-67 (1975) (citing KING JAMES I,THE WORKES OF THE MOST HIGH AND MIGHTIE PRINCE JAMES 529,
531 (1616)).
38 Weatherup, supra note 37, at 967.
39 SOURCES, supra note 19, at 441.
40 Id.
41 Id. at 429.
42 Id.
The early Stuart period was the single most important period in English history in terms of
shaping the political theory of the American revolutionary leaders.30 During this period, civil war
occurred between Parliament and the crown, a King was executed, another King fled to France, a
military dictatorship (pg.1012) ruled, supremacy of the English Parliament over the crown was
established, and Parliament installed a new King and Queen and forced them to accede to a
Declaration of Rights.31 Throughout this period, various factions sought to control the militia and
intermittently to disarm opposing factions.32
James I, the first Stuart monarch, took the Crown in 1603.33 An agitated House of Commons
immediately confronted him.34 James had proclaimed that individuals elected to Parliament could
be seated only if certified by the chancery; only proper men could be certified.35
Parliament took the position that it would determine who should be seated.36 The relationship
deteriorated, with James frequently asserting that Kings hold their thrones by the will of God, not
Parliament, and that to dispute the King is blasphemy.37 James's position was that the King was the
law and all rights flowed from the King. Consequently, in 1621, James advised Parliament that it
existed only by the grace of the King.38
Legal commentators and Parliament assessed the question of the King's power differently.
Lord Coke argued that the King's prerogative was limited to what the law of land allowed him.39
Coke's view was that the law of England was composed of only three parts: common law, statute,
and custom.40 Consequently, the King had no power outside of these. Parliament pointed out that its
powers and liberties were "the ancient and undoubted birthright and inheritance of the subjects of
England ...."41 James I tore the page containing these words from the Journal of the Commons.42
43 See Joyce A. McCray Pearson, The Federal and State Bill of Rights: A Historical look at the Relationship Between
America's Documents of Individual Freedom, 1993 HOW. L.J. 43, 46 (discussing the second antecedent of the federal bill of rights).
44 SOURCES, supra note 19, at 450-52.
45 2 HISTORICAL COLLECTIONS 257 (J. Rushworth ed., 1721).
46 References to this army appear at SOURCES, supra note 19, at 490 (The Nineteen Propositions, June 1, 1642, in which
Parliament insisted on removal and discharge of the same).
47 SOURCES, supra note 19, at 455-56.
48 Weatherup, supra note 37, at 968.
49 Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and
the Involuntary Confession Rule (Part I), 53 OHIO ST. L.J 101, 136 (1992) (discussing Charles's reconvening Parliament in order
to get an appropriation of money).
50 See Daniel R. Coquillette, Ideology and Incorporation III: Reason Regulated—The Post-Restoration English Civilians,
1653-1735, 67 B.U. L. REV. 289, 301 (1987) (discussing the Long Parliament).
51 SOURCES, supra note 19, at 479-81.
52 Id. at 477-78.
53 Id. at 486-87.
54 Id.
James's son Charles fared no better in his relations with Parliament. In (pg.1013) 1628,
Parliament enacted the Petition of Right.43 This petition enumerated Charles's violations of the rights
of his subjects, including forced loans to the Crown, imprisonment without process, quartering of
soldiers in English homes without the consent of the owner, and the execution of persons pursuant
to martial law.44 The King agreed to acknowledge his excesses because he needed Parliament's
assistance in raising revenues.45 Charles I thereafter dissolved Parliament and refused to call new
Parliaments for eleven years.
Charles I began developing his own army.46 Charles attempted to raise funds for additional
military forces by writs or assessments on each individual.47 In addition, ecclesiastical canons were
added which advised subjects that bearing arms against the King would result in damnation.48
Scotland went into open rebellion.
Charles I was forced to call Parliament to session in 1640 for purposes of raising additional
taxes because of the rebellion.49 The new Parliament, frequently called the Long Parliament because
of its extended tenure,50 seized the opportunity to assert its influence to the detriment of the
monarchy. Parliament secured for itself the power of dissolving and eliminating the King's
prerogative courts.51 Additionally, Parliament demanded that Lord Strafford, the King's leading
minister, be removed from his post on the grounds that Strafford had raised a standing army in
Ireland.52 The King complied; Strafford was executed; and Ireland revolted.
Swelled with its success in outmaneuvering the King, the Long Parliament moved to seize
control of the militia.53 The King balked and refused to accede to this demand. Parliament moved
forward and appointed its own officers to (pg.1014) take charge of the militia by passing the bill the
King had refused to sign as an Ordinance of Parliament in 1642.54 Parliament called out the militia
55 SOURCES, supra note 19, at 488.
56 Id. at 487.
57 JOYCE LEE MALCOLM, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: THE ORIGINS OF THE SECOND
AMENDMENT 8-9 (1981).
58 Id. at 393-94.
59 SOURCES, supra note 19, at 523.
60 EDMUND S. MORGAN, INVENTING THE PEOPLE 73 (1988).
61 Id. at 67.
62 Id. at 72.
63 Id. at 73 (citing 7 JOHN RUSHWORTH, HISTORICAL COLLECTIONS 867-68 (1721)).
64 MORGAN, supra note 60, at 74.
65 SOURCES, supra note 19, at 507 (citing THE HEADS OF THE PROPOSALS (1647)).
and warned that militia units mustered under authority other than that of Parliament would be
punished.55 The King did the same, and civil war ensued.56
The actual ability of Parliament or the King to muster the militia is unclear. Charles
attempted to disarm many militia units by confiscating public magazines and seizing the weapons
of residents.57 In addition, Charles sought to arm Catholics he had previously disarmed to secure
their assistance.58 These acts could be considered as evidence that Parliament was more successful
at securing the support of local militias than was Charles I. In any event, Parliament's forces
prevailed. Charles I was executed in 1649 and the Kingship and the House of Lords were abolished.
England was declared a free state.59
Parliament's declaration notwithstanding, England was not a free state. The militia, mustered
in 1642, became standing armies by 1649. After a period of years, the citizen-soldiers no longer
served as the need arose. Many were unwilling to follow the dictates of Parliament. Parliament
created its own army, known as the "New Model Army" in 1645.60 True to its roots, a large portion
of the army perceived that its loyalties lay with the people, not Parliament. Several events fostered
this perception. One event was Parliament's failure to pay the soldiers. Other events included
Parliament's favoring a national Presbyterian church.61
Many army leaders, including Oliver Cromwell, were advocates of religious freedom. Those
army leaders took the position that the English people's freedom of worship was a right over which
Parliament had no control. Thus, part of the army, initially raised by Parliament, saw itself as an
independent political force empowered to act in the name of the people. The army, increasingly
subject to Cromwell's control, proposed an "Agreement of the People," which excluded Parliament's
power over religion, impressing men into the army or navy, or requiring accused persons to
incriminate themselves.62 Parliament rejected the "Agreement."63
(pg.1015)
Consequently, soldiers took an oath, called a "Solemn Engagement," to remain together until
their demands for back pay and political changes were met.64 The army defined Parliament's
authority and dictated when it would meet.65 Subsequently, Parliament attempted to disband the
66 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 573.
67 Id.
68 Id.
69 Id.
70 Id.
71 STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 45 (1984);
DAVID T. HARDY, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT (1986).
72 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 574 (Citing ORDINANCES AND ACTS OF THE
COMMONWEALTH AND PROTECTORATE 1317 (London 1911)).
73 Id.
74 MORGAN, supra note 60, at 94.
75 Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration,
80 GEO. L.J. 309, 321 (1991).
76 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 574.
77 SOURCES, supra note 19, at 541.
78 8 CALENDAR OF STATE PAPERS (DOMESTIC), Charles II, No. 188, at 150 (July 1660).
army. The army declined and eventually took over the government, installing the Rump Parliament.66
When a subsequent Parliament attempted to disband the army, it was dissolved.67 Ultimately, another
Parliament bestowed on Cromwell the role of Lord Protector.68 This Parliament also attempted to
reduce the army's size and revitalize the militia.69 Cromwell, however, dissolved Parliament and
created a military government. Segments of the army, paid regularly by the government, were
assigned to each of eleven military districts.70 Cromwell's army was authorized to disarm all
Catholics, opponents of the government, and anyone else judged dangerous.71 When Cromwell died
in 1659, the Rump Parliament met again and enacted laws that empowered government officials to
confiscate arms from landowners to protect the Commonwealth.72 Shortly thereafter, legislation was
passed authorizing the seizure of arms from Catholics, anyone who had borne arms against
Parliament, or anyone else judged to be dangerous to the State.73
In 1660, the army intervened and General George Monk reinstated members of Parliament
who had been purged in 1648 because they favored the monarchy.74 Parliament then restored the
monarchy by placing Charles II, the executed King's son, on the throne. Charles II was in an
uncomfortable position. He had no army. His father was executed after the Civil War. Because of
the policy of universal armament and the Civil War, the English people were heavily armed.
Cromwell's army of 60,000 was mingled with the rest of the population. Consequently, Charles II
decided to develop his own army and to disarm the population.75
(pg.1016)
Charles II disbanded the army except for troops he believed would be loyal to his
government.76 Parliament assisted by enacting the Militia Act of 1661 which vested control over the
militia in the King.77 Charles II began molding a militia loyal to the throne by directing that his
officer corp assemble volunteers for separate training and "disaffected persons ... not allowed to
assemble and their arms seized."78 In 1662, the more select militia was authorized to seize arms of
79 See J.R. WESTERN, THE ENGLISH MILITIA IN THE EIGHTEENTH CENTURY 10 (1965).
80 Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 HAST.CONST.
L.Q. 285, 299-300 (1983) [hereinafter Malcolm, Tradition].
81 22 & 23 Car. 2, ch. 25 (1671).
82 Id.
83 Id.
84 SOURCES, supra note 19, at 555.
85 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 577.
86 Weatherup, supra note 37, at 140 [ed: reference is to 1982 Senate Report pagination.].
87 For example, King James II tried to force the Church of England's clergy to support his policy of religious tolerance
and to read his Declaration of Indulgence from their pulpits. The Archbishop of Canterbury and six other bishops petitioned the King
against the use of his dispensing power. King James had them charged with seditious libel. The jury acquitted, and the public
endorsed the result. Edith G. Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289, 330-31 (1966).
88 Id.
89 See SOURCES, supra note 19, at 583; Godden v. Hales, 89 Eng. Rep. 1050 (K.B. 1686).
anyone judged dangerous to the Kingdom.79 In addition, gunsmiths were ordered to report weekly
on the number of guns made and sold; importation of firearms was banned.80
A move toward total disarmament occurred with passage of the Game Act of 1671.81 The
Game Act dramatically limited the right to hunt to those persons who earned over £100 annual
income from the land.82 More importantly, and unlike any prior game act, it made possession of a
firearm by other than those qualified to hunt illegal and provided for confiscation of those arms.83
Charles II's successor, his brother James, pursued the disarmament. James, however, was the
object of suspicion because he was Catholic. As King, James was also the official head of the
Anglican Church. He sat on the throne of a country that barred Catholics from holding appointed
office.84
James was challenged only a few months after taking the throne by Charles II's illegitimate
son, the Duke of Monmouth, who proclaimed himself as the Savior of Anglicanism.85 James crushed
the rebellion and, in doing so, doubled his standing army to 30,000 men.86 He used his kingly
"dispensing power," which permits kings to make an occasional exception to the law, to appoint
Catholic officers to enter his army. James quartered his new troops in private homes in violation of
Parliamentary enactments. The populace thus became suspicious of whether James might plan to
impose his religion on (pg.1017) England.87
James continued disarmament by enforcing it in Ireland. The common perception was that
James was disarming Protestants in Ireland and the new Whig party that opposed him. James then
asked Parliament to repeal the test acts that precluded Catholics from holding office, to suspend the
Habeas Corpus Act, and to abandon the militia concept in favor of standing armies.88 Parliament
refused.
James responded by having his Judges find that the laws of England were the King's laws
and the King could dispense with them.89 The King replaced Protestants with Catholics at high
90 Weatherup, supra note 37, at 141 [ed: reference is to 1982 Senate Report pagination.].
91 SOURCES, supra note 19, at 599.
92 Id. at 606.
93 Id. at 601.
94 Malcolm, Tradition, supra note 80, at 307.
95 The Declaration of Rights contained as its fifth and sixth charges against James II the assertion that he had attempted
"to subvert" the "[l]aws and [l]iberties" by "raising and keeping a Standing army ... in time of peace" and "y causing several good
Subjects, being Protestants, to be disarmed at the same Time when Papists were both armed and employed contrary to Law." The
Bill of Rights, 1 W. & M., sess. 2, ch. 2 (1689).
96 JOURNAL OF THE HOUSE OF COMMONS FROM DEC. 26, 1688 TO OCT. 26, 1693, at 21-22 (London 1742) (Lib. of
Congress Rare Books Collection)).
97 Malcolm, Tradition, supra note 80, at 307 (citing 10 H.C. JOUR., 1688-93, at 21-22).
98 Id. (emphasis added).
government posts, including the military; he then placed 13,000 men of his army outside London.90
In 1688, James's son-in-law, William of Orange, a Protestant, landed in England with a large Dutch
army. James's army deserted him and he fled to France.
William and Mary became sovereigns in 1689. Parliament restricted their powers by adopting
the Declaration of Rights.91 William and Mary were required to accept the rights enumerated in the
Declaration as the rights of their subjects and to rule in accordance with Parliament's statutes.92 The
Declaration recited the abuses by James, including the raising and keeping of a standing army
without Parliament's consent, quartering of troops in private homes, and disarming Protestant
subjects. The declaration set forth the positive right of Protestant subjects to have arms for their
defense, suitable to their conditions, and as allowed by law.93
The Declaration did not create a new right. The English had been able to possess individual
arms for centuries and at times were required to keep them. Nevertheless, the debates attending the
Declaration make clear that Parliament thought the right should be recognized as a right of
individuals. The Whigs in the Convention Parliament were the most outspoken in favor of the right
to (pg.1018) possess arms to resist tyranny.94 The members were aggrieved that the King and a prior
Parliament had attempted to, and did, disarm some of the English subjects.95 An early draft of the
grievance portion of the Declaration recited that "the Acts concerning the militia are grievous to the
subjects,"96 a reference to those portions of the civil war era militia acts that permitted the militia to
disarm those suspected of disloyalty.
To address this grievance, the draft stating the positive right first provided: "t is necessary
for the Publick Safety, that the Subjects which are Protestants, should provide and keep Arms for
their common Defence. And that the Arms which have been seized, and taken from them, be
restored."97 This version stated a collective purpose for the right, public safety, and common defense.
A second version followed that deleted the reference to the public safety but retained the collective
purpose language: common defense. It altered the "should keep" language to "may keep." This
version read, "[T]hat the Subjects, which are Protestants, may provide and keep Arms, for their
common Defence."98
99 1 W. & M., sess. 2, ch. 2 (1689).
100 SOURCES, supra note 19, at 601.
101 1 W. & M., Sess. 2, ch. 2 (1689).
102 Malcolm, Tradition, supra note 80, at 309 (citing 4 & 5 W. & M., ch. 23 (1692)).
103 Id. at 311 (citing Rex v. Gardner, Strange, 2 REPORTS 1098, 93 Eng. Rep. 1056 (K.B. 1739)).
104 SOURCES, supra note 19, at 601 ("Bill of Rights").
105 Malcolm, Tradition, supra note 80, at 309 (citing 1 W. & M., ch. 15 (1689)).
106 See HALBROOK, supra note 71.
The final version came after a compromise with the House of Lords. A prior Parliament,
during the civil war era, had not only permitted its militia, a collective organization, to disarm others,
but had also abolished the House of Lords. The House of Lords apparently objected to the "collective
purpose" language in the Commons draft. It secured new language that completely eliminated the
collective purpose—common defense language.99 The complete text, on this point, as adopted, reads
"[T]hat the subjects which are Protestants may have arms for their defense suitable to their
conditions and as allowed by law."100
Several other points are important regarding this article of the declaration. First, the language
that Protestant subjects may have arms "as allowed by law" was not construed as a limitation on
possession, but rather a limitation on (pg.1019) use.101 Parliament enacted a new game or hunting act that
deleted firearms from the list of hunting equipment that could not be possessed except by the
wealthy.102 Arms could be confiscated if used to poach game, but possession of arms was protected
as a matter of right.103 However, the phrase "as allowed by law" highlights that what Parliament
giveth, Parliament could take away. With or without the phrase, Parliament's Declaration of Rights
only protected those rights from abuse by the monarchy. In 1689, like today, the non-constitutional
English system permits the current Parliament to abrogate the rights granted by a prior Parliament.
Second, the English Declaration of Rights states "that the subjects which are Protestants may
have arms."104 However, contemporaneous legislation in 1689 made clear that while Catholics were
not permitted to stockpile weapons, they were allowed to possess arms for defense of their house or
person.105 Last, although the Declaration speaks solely in terms of an individual right to bear arms,
a review of eighteenth-century literature indicates that the intended purpose was to provide both an
individual and a collective right with the collective right being the more important.106 A true
collective right, however, could only be protected by guaranteeing the individual right.
Two points should be addressed on this issue. First, during the civil war era and thereafter,
both Parliament and the monarchy had proclaimed themselves, to the exclusion of the other, as the
protector of the subjects' well-being. To facilitate the collective rights of the subjects, each had
attempted to disarm the others' supporters. Thus, the collective organization intended to protect all
subjects' liberty, the militia, became an instrument of governmental tyranny. The collective rights
of all subjects could not be guaranteed if the government had the power to vest enforcement in one
collective organization because the government controlled the organization. Accordingly, the
government's power to appoint the officers of the militia and select its membership meant that the
militia could become an instrument of the government, not the people. Thus, the people's collective
107 COMMENTARIES, supra note 8, at *88.
108 Id. at *144.
109 Id. at *140-41.
110 See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); Michael W. McConnell,
The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).
111 See JOHN G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC
REPUBLICAN TRADITION 462-552 (1975); CAROLINE ROBBINS, THE EIGHTEENTH-CENTURY COMMONWEALTHMAN: STUDIES IN THE
TRANSMISSION,DEVELOPMENT, AND CIRCUMSTANCES OF ENGLISH LIBERAL THOUGHT FROM THE RESTORATION OF CHARLES IIUNTIL
THE WAR WITH THE THIRTEEN COLONIES 385 (1959); Robert E. Shalhope, Republicanism and Early American Historiography, 39
WM. & MARY Q. 334, 334-37 (1982).
112 See WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 18-19 (1972).
113 See generally POCOCK, supra note 111 (tracing republican thought from Aristotle to Machiavelli and Florentine
political theory, to James Harrington and the English civic humanists, to the eighteenth century's Radical Whigs, and, ultimately to
the American Founders). For an in-depth analysis of Harrington's political thought, see THE POLITICAL WORKS OF JAMES
HARRINGTON (John G.A. Pocock ed., 1977).
114 See generally JAMES HARRINGTON, The Commonwealth of Oceana, in THE POLITICAL WORKS OF JAMES HARRINGTON,
supra note 113, at 170 (explaining that the way to mediate security of property with widespread civic participation was to redistribute
property, especially non-feudal, "allodial" interest in land, broadly within society so that citizenship, and the opportunity to
participate, would be widely available). Not all republicans, however, held egalitarian property distribution notions. For a discussion
of elitist aspects of republicanism, see, e.g., Hendrick Hartog, Imposing Constitutional Traditions, 29 WM. & MARY L. REV. 75
(1987); Frank I. Michelman, Possession v. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319 (1987).
115 THE POLITICAL WORKS OF JAMES HARRINGTON, supra note 113.
rights were enforceable only if the power of enforcement, force of arms, was universally
dispersed.(pg.1020)
III. THE ENGLISH THEORISTS
Accordingly, when Blackstone spoke of the rights of persons, he defined such rights as being
either: 1) absolute, that is belonging to the person whether out of society or in it; or 2) relative,
meaning the right is an incident of membership in society.107 Blackstone described the right to keep
arms as absolute or belonging to the individual, but ascribed both public and private purposes to the
right. The public purpose was resistance to restrain the violence of oppression; the private was
self-preservation.108 Blackstone described this right as necessary to secure the actual enjoyment of
other rights which would otherwise be in vain if protected only by the dead letter of the laws.109
In addition to Blackstone, the views of other seventeenth- and eighteenth-century English
political theorists clearly influenced the political views of the colonists who ultimately would revolt
and establish a new nation.110 American political thought was strongly linked to "republican" thought
in England.111 The essence of republican thought was that a citizenry could rule itself without the
paternal guiding hand of a monarch.112
One of the leading republican theorists was James Harrington.113 Harrington's beliefs were
simple and direct. He believed that ownership of land gave people independence.114 This
independence would cultivate rights now (pg.1021) considered fundamental, including the right of
self-government. Harrington also believed that the actual independence attained would be a function
of the citizen's ability to bear arms and use them to defend his rights.115 He sought support from the
116 NICCOLO MACHIAVELLI, THE PRINCE AND THE DISCOURSES 44 (Luigi Ricci trans., Mod. Lib. ed. 1950) (1513).
117 See JAMES HARRINGTON,THE POLITICAL WRITINGS OF JAMES HARRINGTON:REPRESENTATIVE SELECTIONS 74 (Charles
Blitzer ed., 1955).
118 MORGAN, supra note 60, at 157.
119 See, e.g., BERNARD BAILYN,THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); POCOCK, supra note
111, at 462-552; ROBBINS, supra note 109, at 385. Although these historians are all part of a common movement, there do exist
significant differences in the ways they view republicanism. See Shalhope, supra note 111, at 334-37.
120 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 585 (citing CRISTOPHER HILL, SOME
INTELLECTUAL ORIGINS OF THE ENGLISH REVOLUTION 27 (1980)).
121 Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 589 (citing FRANCOIS HOTMAN,FRANCOR
CALLIA at iv (R. Molesworth trans., London 1711)).
122 The Founding Fathers were influenced by the fact that the entire body of republican philosophy known to them was
based on English and classical history, which taught that popular possession of arms was vital to the preservation of liberty and a
republican form of government. See Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599
(1982).
123 The unanimity with which Federalists and Antifederalists supported an individual right to bear arms is a reflection
of their shared philosophical and historical heritage. The unanimity in the contemporary understanding of the Second Amendment
helps explain the relative absence of recorded debate over it. What little debate there is appears at 1 ANNALS OF CONG. 778-80 (J.
Gales ed., 1834) and relates to James Madison's proposal that the amendment provide that "no person religiously scrupulous shall
be compelled to bear arms." Id.
works of Machiavelli, who proclaimed that there was a direct relationship between good arms and
good laws.116
A central thesis of Harrington's republican theory is that an armed population is a popular
government's best protection against its enemies, both foreign and domestic.117 While Harrington and
subsequent republicans argued the virtue of armed citizenry, they warned that standing armies were
to be avoided at almost all cost because such armies become the government's instrument to retain
power.118 Rather, a populace that possessed the land and arms inevitably would retain political power
as well as serving as the best defense against the popular government's enemies.
These views became tenets of early republican or whig political theorists during the
eighteenth century.119 Henry Neville argued that by arming the people, democracies could obtain
incomparable advantage over neighboring aristocracies because the aristocracies could not arm their
populace for fear they would seize the government.120 Robert Molesworth praised the armed and free
Swiss, as well as his own brethren, the English, as examples of the virtue of arming the people as
individuals.121
(pg.1022)
IV. THE POLITICS OF THE FOUNDING FATHERS
The English republican views on the relationship between arms and democracy profoundly
influenced the views of the founding fathers.122 Both the Federalists, those promoting a strong central
government, and the Antifederalists, those believing that liberties including the right of self-rule
would be protected best by preservation of local autonomy, agreed that arms and liberty were
inextricably linked.123
The first discussion in which these views were articulated occurred in the context of Article
1, section 8 of the Constitution concerning the powers of Congress to raise a standing army and its
124 U.S.CONST. art. I, § 8, cl. 11-16. In these clauses, Congress may "declare War, ... raise and support Armies, ... provide
and maintain a Navy; ... make Rules for the Government and Regulation of the land and naval Forces; ... provide for calling forth
the Militia ... provide for organizing, arming, and disciplining, the Militia ...." See also Chappell v. Wallace, 462 U.S. 296, 301
(1983) (stating that the framers of the Constitution clearly contemplated that Congress have plenary authority over creation and
maintenance of military).
125 DOCUMENTARY HISTORY OF THE CONSTITUTION 560 (Dept. of State, 1900), reprinted in 3 DOCUMENTARY HISTORY
OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 1786-1870, at 560 (Johnson Reprint Corp. 1965).
126 Id. at 560, 599, 677, 746.
127 For a discussion of the debate concerning the military at the Constitutional Convention, see SAMUEL P.HUNTINGTON,
THE SOLDIER AND THE STATE 80-97, 345-46 (1957).
128 See U.S. CONST. art. I, § 8, cl. 12.
129 Akhil Amar argues that the Second Amendment also provides a linguistic gloss on Congress's Article I military
powers. An army constituted hired soldiers, unlike a militia that consisted of the general public. Consequently, Congress's power
to raise an "army" involves authority to enlist soldiers, not conscript them. See Akhil R. Amar, The Bill of Rights as a Constitution,
100 YALE L.J. 1131 (1991).
130 U.S. CONST. art. I, § 8, cl. 15 reserves to the states "the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress."
131 See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 386 (Max Farrand ed., 1911) [hereinafter RECORDS].
power over the militia. As initially proposed, Congress was to be provided the power to raise
armies.124 Objections were raised that there was no check against standing armies in time of peace.125
The debate focused on how to avoid the dangers of a standing army; there was no dispute that a
standing army posed a significant threat to the liberty of the people.126 The dilemma was that some
type of national army would be necessary in time of war, but the results of waiting until war occurred
to raise a national army could be disastrous.127
The solution adopted was two-fold. First, Congress would have the power to raise an army
but no appropriation of money for that use could be for more (pg.1023) than two years.128 Because the
people controlled the House of Representatives and the Senate, and Congress controlled the purse,
the people were given an effective check against the dangers of a standing army. The second check
against the dangers of a standing army was provided by the existence of the militia. Again, however,
the necessity of providing for the common defense had to be satisfied while guarding against the
national government's abuse of power.
If the danger of a standing army was to be limited, the militia, which was then under the
control of the states, must be available to meet national emergencies until an adequate standing army
could be raised. Thus, the national government needed the power to call upon the militia.
Conversely, the existence of a militia independent of federal control was deemed necessary as a
check on the standing army which Congress was authorized to raise.129 The resolution was to provide
Congress with the power to organize, arm, and discipline the militia and to govern such parts as may
be called into federal service, but to reserve to the states the appointment of officers and actual
training of the militia.130 The drafters of this particular language hastened to point out that the power
to organize, arm, and discipline was intended only to allow Congress to prescribe the proportion of
men to officers, specify the kind and size of arms, ensure that men were armed in fact either by
themselves, the states, or by Congress, and to prescribe exercises.131 The States were to be in control
132 U.S. CONST. art. I, § 8, cl. 16 reserves "to the States respectively" the power to appoint the officers of any militia for
which Congress might provide and to conduct the "training [of] the militia according to the discipline prescribed by Congress."
133 LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN (W. Bennett ed., 1978) [hereinafter FEDERAL FARMER].
134 The true author of the Letters from the Federal Farmer to the Republican is unknown. The traditional view is that
Richard Henry Lee of Virginia was the author. Steven R. Boyd argues that the overwhelming contemporary opinion was that Lee
was indeed the "Federal Farmer." See Steven R. Boyd, Impact of the Constitution on State Politics: New York as a Test Case, in THE
HUMAN DIMENSIONS OF NATION MAKING 270, 276 n.14 (J. Martin ed., 1976).
135 Letter from the Federal Farmer (Oct. 13, 1787), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 251 (H. Storing ed.,
1981).
136 FEDERAL FARMER, supra note 133, at 13.
137 For Antifederalist attacks on standing armies, see, e.g., Essays by a [Maryland] Farmer, in 5 HERBERT J. STORING,
THE COMPLETE ANTI-FEDERALIST 22-28 (1981).
138 Id. at 21-22.
of the militia by reason of the power to appoint officers and provide for the actual training.132 The
national government would be in control of the militia only when the militia was called out for
national service and, even then, would have to rely on the State appointed officers to execute its
orders.
A. The Antifederalist View
Additional views on the relationship between freedom and arms were expressed when the
Constitution was being submitted to the states for ratification. The Antifederalist views were stated
in pamphlets entitled Letters (pg.1024) from the Federal Farmer to the Republican.
133 Richard Henry
Lee is credited with authorship.134 The self-styled federal farmer thought of himself as a supporter
of federalism and republicanism.135 His view of federalism was not that set forth in the proposed
Constitution of 1787. The federal farmer argued that a distant national government was antithetical
to freedom:
[T]he general government, far removed from the people, and none of its members elected
oftener than once in two years, will be forgot or neglected, and its laws in many cases
disregarded, unless a multitude of officers and military force be continually kept in view,
and employed to enforce the execution of the laws and to make the government feared and
respected. No position can be truer than this, that in this country either neglected laws, or
a military execution of them, must lead to revolution, and to the destruction of freedom.
Neglected laws must first lead to anarchy and confusion; and a military execution of laws
is only a shorter way to the same point—despotic government.136
The federal farmer also saw evil in Congress's power to raise an army, despite the two-year
limit on money appropriations and the states' control over the militia via the appointment of
officers.137 He understood the need to provide for the common defense but believed an additional
check was necessary. He proposed requiring two-thirds consent in Congress before a standing army
could be raised or the militia could be pressed into service by the national government.138
Additionally, the federal farmer argued that a select militia composed of less than all the people
139 Id. at 124.
140 3 THE PAPERS OF GEORGE MASON 1725-1792, at 1075 (Robert A. Rutland ed., 1970).
141 Id. at 1075, 1076.
142 Speeches by Patrick Henry Before the Virginia Ratifying Convention (June 5 & 7, 1788), reprinted in THE
ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL CONVENTION DEBATES 199-216 (Ralph L. Ketcham ed., 1986).
143 Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH.L.REV. 204, 229
(1983).
144 See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE
L.J. 551 (1991).
145 Madison warned that the greatest danger to the constitutional order and to the liberty of the citizen was not the
possibility of a tyrant President, which he regarded as slight, but the risk that Congress would take over the powers of the other two
branches of government. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands," Madison wrote,
"may justly be pronounced the very definition of tyranny." THE FEDERALIST No. 47, at 329 James Madison) (Tudor Publishing Co.
1937). Power "is of an encroaching nature," and something more than "parchment barriers" is required to restrict it "from passing
the limit assigned to it." Id., No. 48, at 321. The risk of congressional power is great, far greater than the risk from the President or
the courts. Congress "alone has access to the pockets of the people." Id. at 321, 323. Its supposed influence over the people is an
inducement to act, and it can expand its power in many ways, masking its encroachments "under complicated and indirect measures."
Id. at 323. Madison concluded that "it is against the enterprising ambition of this department that the people ought to indulge all their
jealousy and exhaust all their precautions." Id.
146 WILLIAM H. RAWLE, A VIEW OF THE CONSTITUTION 125-26 (2d ed. 1829). Alexander Hamilton saw the people's
possession of arms as guaranteeing freedom from state as well as from federal tyranny. The armed populace, "by throwing themselves
into either scale, will infallibly make it preponderate" against either a federal or a state invasion of popular rights. THE FEDERALIST
No. 28, at 228 (Alexander Hamilton) (John C. Hamilton ed., 1864).
ought to be avoided. The farmer argued 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.139
Another Antifederalist, George Mason, spoke on the relationship between (pg.1025) arms and
liberty. Mason asserted that history had demonstrated that the most effective way to enslave a people
is to disarm them.140 Mason suggested that divine providence had given every individual the right
of self-defense, clearly including the right to defend one's political liberty within that term.141
Patrick Henry argued against ratification of the Constitution by Virginia, in part because the
Constitution permitted a standing army and gave the federal government some control over the
militia.142 Henry objected to the lack of any clause forbidding disarmament of individual citizens;
"the great object is that every man be armed .... Everyone who is able may have a gun."143 The
Antifederalists believed that governmental tyranny was the primary evil against which the people
had to defend in creating a new Constitution. To preserve individual rights against such tyranny, the
Antifederalists argued for the addition of a Bill of Rights which included, among other rights, the
right to keep and bear arms.144
B. The Federalist View
The Federalists, those supporting the Constitution as drafted, did not dispute the premise that
governmental tyranny was the primary evil that people had to guard against.145 Nor did the
Federalists dispute the nexus between (pg.1026) arms and freedom.146 In one of the first Federalist
pamphlets, Noah Webster argued that the proposed Constitution provided adequate guarantees to
147 See STAFF OF SENATE SUBCOMM. ON THE CONSTITUTION,COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., REPORT
ON THE RIGHT TO KEEP AND BEAR ARMS 27 (Comm. Print 1982).
148 NOAH WEBSTER,AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION PROPOSED BY THE
LATE CONVENTION HELD AT PHILADELPHIA 43 (Philadelphia 1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED
STATES PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE: 1787-1788, at 5 (Paul L. Ford ed., 1888).
149 At the convention, James Madison remarked:
As the greatest danger is that of disunion of the States, it is necessary to guard [against] it by sufficient
powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to
prevent them, by an effectual provision for a good Militia.
JAMES MADISON,NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 600 (Gouverneur Morris) (Ohio Univ. Press rev. ed.
1984).
150 THE FEDERALIST No. 46, at 310, 311 (James Madison) (Modern Library ed., 1937).
151 See ALEXANDER HAMILTON AND THE FOUNDING OF THE NATION (Richard B. Morris ed., 1957).
152 THE FEDERALIST No. 28 (Alexander Hamilton).
check the dangers of any standing army.147 His reasoning acknowledged checks and balances, but
did not rely on the same. Rather, Webster argued:
Before a standing army can rule, the people must be disarmed; as they are in almost every
Kingdom of 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.148
Similarly, James Madison made clear that, although the proposed Constitution offered
sufficient guarantees against despotism by its checks and balances, the real deterrent to governmental
abuse was the armed population.149 To the Antifederalist criticism of the standing army as a threat
to liberty, Madison replied:
To these [the standing army] would be opposed a militia amounting to near half a million
of citizens with arms in their hands, officered by men chosen from amongst themselves,
fighting for their common liberties, and united and conducted by government possessing
their affections and confidence. It may well be doubted, whether a militia thus
circumstanced could ever be conquered by such a proportion of regular troops .... Besides
the advantage of being armed, which Americans possess over the people of almost every
other nation, the existence of subordinate governments, to which the people are
(pg.1027) attached, and by which the militia officers are appointed, forms a barrier against the
enterprises of ambition, more insurmountable than any which a simple government of any
form can admit of.150
Another leading Federalist, Alexander Hamilton, voiced a similar view.151 Hamilton suggested that
if the representations of the people, elected under the proposed Constitution, betrayed their
constituents, the people retained the right to defend their political rights and possessed the means
to do so.152
In summary, both Federalists and Antifederalists believed that the main danger to the
republic was tyrannical government and the ultimate check on tyrannical government was an armed
153 See supra notes 133-52 and accompanying text.
154 The Antifederalist warnings of inevitable doom, which would follow granting the central government an army power,
were neutralized by a Federalist-proposed system of checks and balances that would prevent the army from usurping the power of
the elected government and oppressing the people. See The Address and Reasons of Dissent of the Minority of the Convention of
Pennsylvania to their Constituents (Dec. 18, 1787), reprinted in THE ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL
CONVENTION DEBATES 254-56 (R. Ketcham ed., 1986). The minority feared that:
A standing army in the hands of a government placed so independent of the people, may be a fatal
instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive
taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his
devotion, may step up into the throne, and seize upon absolute power.
Id. at 254.
The Federalists advanced the contrary view, including Alexander Hamilton who argued that if the central government was
denied an army power then future generations would be unable to adequately protect themselves. THE FEDERALIST No. 23 (Alexander
Hamilton).
155 See 1 HERBERT J. STORING, THE COMPLETE ANTI-FEDERALIST: WHAT THE ANTI-FEDERALISTS WERE FOR 64-70, 72
(1981) (discussing the debate between Federalists and Anti-federalists over whether a constitution that based government on
republican principles needed a bill of rights to protect individual liberties).
156 Id.
157 Washington advised Lafayette: "There was not a member of the Convention, I believe, who had the least objection
to what is contended for by the Advocates for a Bill of Rights ...." 3 RECORDS, supra note 131, at 297-98.
158 THE FEDERALIST No. 84 (Alexander Hamilton).
159 See supra notes 113-21.
160 See PHILIP B. KURLAND & RALPH LERNER, THE FOUNDERS' CONSTITUTION (1987).
161 Reid v. Covert, 354 U.S. 1, 24 (1957) ("Their fears were rooted in history. They knew that ancient republics had been
overthrown by their military leaders.").
population.153 Federalists and Antifederalists disagreed, however, on several issues. First, they
disagreed as to whether sufficient checks and balances had been placed on the proposed national
government to control the danger of oppression.154 Second, the Antifederalists believed a bill of
rights should be incorporated into the Constitution to guarantee certain rights.155 The Federalists
argued that such a bill of rights was unnecessary because the power of the federal government was
restricted to the grant of authority provided by the Constitution.156 There was no need to
(pg.1028) provide exceptions to powers not granted.157 Further, the Federalists argued that providing
exceptions to powers not granted was dangerous because it could encourage a claim that powers not
expressly stated had been granted.158 Again, both sides not only agreed that the people had a right
to be armed, both sides assumed the existence of an armed population as an essential element to
preserving liberty. The framers quite clearly had adopted James Harrington's political theory that the
measure of liberty attained and retained was a direct function of an armed citizenry's ability to claim
and hold those rights from domestic and foreign enemies.159
V. THE RATIFICATION PROCESS
The Federalist and Antifederalist pamphlets were written to influence the ratification process
by which the proposed Constitution would become effective.160 In addition to revealing the drafters'
political philosophy, the pamphlets and other documents intended to influence ratification reveal
additional concerns with the right to bear arms.161 Antifederalists rejected the claim that the militia
162 Instead of a standing army providing for the nation's defense, the Antifederalists advocated the use of a well-regulated
militia maintained by each state. These militia would be under the state governor's control but subject to requisition by the national
government in time of need. The prevailing sentiment was that:
The standing army with its upper-class officers and lower-class enlisted men was basically an aristocratic
institution. It was associated with the British Crown and with European despotism. It was quite unnecessary in
the eyes of many Americans. The distance of the United States from Europe meant that it required no permanent
military force with the possible exception of small frontier garrisons to deal with the Indians. Consequently, it
was generally agreed that primary reliance must be put on a citizen militia composed of part-time officers and
enlisted men.
HUNTINGTON, supra note 127, at 166-67.
163 Virginia's Richard Henry Lee argued that select militia might be used to disarm the population and that, in any event,
it would pose more of a danger to individual liberty than a militia composed of the whole population. He charged that a select militia
"commit the many to the mercy [and the] prudence of the few." Richard Henry Lee, LETTERS FROM THE FEDERAL FARMER:LETTER
III (Oct. 10, 1787), reprinted in THE ANTIFEDERALISTS 229 (Cecelia M. Kenyon ed., 1966).
164 See RUDOLF CRONAU, THE ARMY OF THE AMERICAN REVOLUTION AND ITS ORGANIZER (1923).
165 See MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (1913).
166 The Federalist Papers, a collection of some 85 newspaper essays, was written between October 1787 and May 1788
by Alexander Hamilton, James Madison, and John Jay to persuade the New York state ratifying convention to adopt the Constitution.
A standard critical edition in use today is THE FEDERALIST PAPERS (Clinton Rossiter ed., 1961).
167 For example, in THE FEDERALIST No. 23, Publius addressed the need to adopt a constitution "at least equally energetic
with the one proposed," relying upon the "[d]efective" nature of the Articles of Confederation. THE FEDERALIST No. 23, at 143, 146
(Alexander Hamilton) (Modern Library ed. 1941). The argument was frequently reiterated. See id. No. 15, at 93 (Alexander
Hamilton); id. No. 22, at 140 (Alexander Hamilton); id. No. 26, at 164-65 (Alexander Hamilton).
168 See 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS
RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 327-31 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter
STATE DEBATES].
would serve as a deterrent to the threat posed by a standing army.162 The responsive argument widely
made was that Congress might be able to confine the existing militia force, all armed citizens, to a
select militia made up of a small segment of the population.163 Baron Von Steuben,
(pg.1029) Washington's Inspector General, had already proposed such a force.164 The fear was that
creation of a select militia, armed by and loyal to the federal government, would be accompanied
by disarmament of the people in general.
A. The State Conventions
All of the arguments for and against ratification came to bear in the state conventions.165 In
New York, Hamilton advocated adopting the Constitution and amending it, if necessary.166
Hamilton's argument was that if amendments were to be made, they ought to be made after adoption
since an alteration would constitute a new proposal and must undergo a new decision in each state.167
Hamilton's argument prevailed. New York ratified the Constitution, but it included with the
ratification statement a declaration of rights and a statement that ratification was made with the
assumption that the rights enumerated in the declaration could not be abridged or violated and were
consistent with the Constitution.168 Accordingly, New York ratified, but made clear that the people
had a right to keep and bear arms and that the militia was to include all the people capable of bearing
arms, not just a select few.
Similarly, New Hampshire ratified the Constitution but stated:
169 See DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES, H.R. DOC. NO. 398,
69th Cong., 1st Sess. 1007 (1927).
170 3 STATE DEBATES, supra note 168, at 626-27; 2 STATE DEBATES, supra note 168, at 436.
171 The classic formulations of the mischief feared by inclusion of a bill of rights are found in the speech by James Wilson
before the Pennsylvania ratifying convention. LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 270-72
(1988).
172 PA. CONST. of 1776, Declaration of Rights, art. XIII.
173 See 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 665 (1975).
174 Id. at 675.
175 Id.
176 See William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 MIL. L. REV. 1, 36
(1992) (discussing the unusual alignment in Virginia where liberals like Thomas Jefferson, Patrick Henry, and Richard Henry Lee
joined forces with conservatives like George Mason to promote a bill of rights). The Virginia Proposals for a bill of rights were
drafted by a committee that included Antifederalists Lee and Mason, as well as Federalists James Madison, John Marshall, and
George Wythe.
It is the Opinion of this Convention that certain amendments & alteration in the said
Constitution would remove the fears and quiet the apprehensions of many of the good
people of this State & more effectually guard against an undue Administration of the
Federal Government—The Convention do therefore recommend that the (pg.1030) following
alterations & provisions be introduced into the said Constitution.
...
Twelfth
Congress shall never disarm any citizen unless such as are or have been in Actual
Rebellion.169
In Pennsylvania, James Wilson argued against adding a bill of rights on grounds already
offered by Madison,170 that such an enumeration was unnecessary and indeed dangerous since no
person could enumerate all the rights of men.171 Pennsylvania ratified, but a substantial minority
drafted a series of proposed amendments that included the following:
That the people have a right to bear arms for the defense of themselves and their own State
or the United States, or for the purpose of killing game; and no law shall be passed
disarming the people or any of them unless for crimes committed, or real danger of public
injury from individuals.172
It is doubtful that the Pennsylvania minority was attempting to constitutionalize hunting as a sport.173
Rather, the delegates were attempting to eliminate the possibility that game laws, used effectively
in England at different points to disarm the population, would not produce a similar result in
America.
Samuel Adams made similar arguments in Massachusetts.174 The argument that adoption
must precede amendment prevailed.175 In Virginia, Madison secured ratification, but George Mason,
Patrick Henry, and Richard Henry Lee were successful in having the convention adopt a Declaration
of Rights which was to be recommended to the First Congress for adoption as constitutional
amendments.176 The right of the people to keep and bear arms (pg.1031) was included as was the
177 The Virginia convention urged the adoption of the following language:
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 for a free state; that standing armies, in time
of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection
of the community will admit; and that in all cases, the military should be under strict subordination to, and
governed by, the civil power.
3 STATE DEBATES, supra note 168, at 659.
178 N.C. Proposal for a Declaration of Rights, § 19, in 4 STATE DEBATES, supra note 168, at 244.
179 N.C. CONST. of 1776, Declaration of Rights, art. XVII.
180 In August 1788, the North Carolina Convention refused to ratify the Constitution by a greater than two to one
majority. The vote is recorded in 4 STATE DEBATES, supra note 151, at 250-51. North Carolina did not ratify until November 1789.
ROBERT A. RUTLAND, THE ORDEAL OF THE CONSTITUTION: THE ANTIFEDERALISTS AND THE RATIFICATION STRUGGLE OF 1787-88,
at 250-51 (1966).
181 Id.
182 See 1 STATE DEBATES, supra note 168, at 331-37.
183 See Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST.
22, 31 (1984).
184 See Patrick Conley, First in War, Last in Peace: Rhode Island and the Constitution, 1786-1790, in THE CONSTITUTION
AND THE STATES: THE ROLE OF THE ORIGINAL THIRTEEN IN THE FRAMING AND ADOPTION OF THE FEDERAL CONSTITUTION 276-85
(Patrick Conley & John P. Kaminsky eds., 1988).
185 See Stephen P. Halbrook, The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina,
Vermont, and Massachusetts, 10 VT. L. REV. 255 (1985).
statement that a militia composed of the body of the people was the natural and safe defense of a free
state.177
North Carolina's convention proposed that a declaration of rights be added to the Constitution
which explicitly identified the right of people to keep and bear arms as a natural right and one of the
means necessary to the pursuit and obtainment of happiness and safety.178 Identification of the right
was accompanied by the statement that the militia, composed of the body of the people, trained to
arms, is the natural and safe defense of a free state.179 The North Carolina convention refused to
ratify the Constitution until the document included this and other rights.180 North Carolina did not
ratify the Constitution until the Bill of Rights was drafted and submitted to the States.181 Rhode
Island followed an identical course by identifying the right of the people to keep and bear arms as
a natural right, among others, and declining to ratify the Constitution until after the Bill of Rights
had been drafted and submitted.182
To summarize the state ratification process, three states, New York, New Hampshire, and
Virginia, ratified while expressing their understanding that the people had a right to bear arms and
that Congress would never disarm law abiding citizens.183 Two states, North Carolina and Rhode
Island, refused to ratify until individual rights, including the people's right to keep and bear arms,
(pg.1032) were recognized by amendments.184 In Pennsylvania and Massachusetts, an effort was made
to amend or condition ratification on amendment to include, among others, the right to keep and bear
arms.185 Efforts to amend were defeated but not on the merits. There is no evidence from any state
convention that any speaker suggested that the proposed Constitution would permit disarming the
public.
B. The Framers' Views of the States and Their Role
186 The United States expanded its rulers' powers when it adopted the Constitution in place of the Articles of
Confederation. See GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 77 (12th ed. 1991).
187 See Harold G. Maier, The United States Constitution in its Third Century: Foreign Affairs: Distribution of
Constitutional Authority: Preemption of State Law: A Recommended Analysis, 83 AM. J. INT'L L. 832, 832 (1989).
188 JACKSON T. MAIN, THE ANTIFEDERALISTS: CRITICS OF THE CONSTITUTION, 1781-1788 (1961).
189 See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1452 (1987).
190 Baron de Montesquieu (1689-1755) was a French political philosopher who classified various forms of government
and their attributes. His ideas were well-regarded by the Americans; Jefferson once wrote that in economics, Adam Smith is generally
recommended, in politics and government, Montesquieu's treatises held equal stature. "To Mr. Thomas Mann Randolph, New York,
May 30, 1790," in 8 THE WRITINGS OF THOMAS JEFFERSON 31 (Memorial ed. 1903).
191 MONTESQUIEU, THE SPIRIT OF LAWS, bk. VIII, ch. 16, at 176 (David W. Carrithers ed., 1977).
As discussed earlier, one of the disputes between the Federalists and Antifederalists related
to the relative strength that ought to be given to the central government. Prior to adoption of the
Constitution, the country was ruled by the Articles of Confederation.186 These articles preserved the
autonomy of the individual states and provided little power to the central government.187 The
proposed Constitution altered this balance in favor of the central government. The proposed change
provoked substantial discourse.188 In recent times, the Antifederalists have been called states' rights
proponents as a consequence of their position that the proposed Constitution provided too much
power to the central government, with too few checks, at the expense of the states.189
This label—states' rights proponents—is inaccurate and misleading. Federalists and
Antifederalists feared governmental tyranny by all governments—state and federal. The framers of
the Constitution, particularly the Antifederalists, were not attempting to preserve states' rights. They
were attempting to preserve the people's rights by maintaining local autonomy in the form of the
various state governments.
The Antifederalists relied extensively on the works of Baron de (pg.1033) Montesquieu to
support the proposition that the geographic size of an area strongly influenced its form of
government.190 Montesquieu had written democracy could survive only in a small-sized state, small
enough to permit the actual participation of the people in government and small enough so that each
citizen understands that promoting the public good directly promotes the individual.191 A
middle-sized territory, as Montesquieu terms it, would inevitably become a monarchy; to an
extensive territory, a despotic form of government was best adapted. In large republics, the public
good is sacrificed to a multiplicity of views and the citizens do not perceive the nexus between
promoting the public good and their individual welfare.
According to Montesquieu, a middle-sized territory would tend to become a monarchy
because ambitious persons who do not perceive the public good as beneficial to them seek grandeur
by imposing their will on others. One person eventually prevails and assumes the role as prince. The
monarchy then exists through a system of honor established by giving perks and titles. If the territory
is too large, one person cannot command sufficient allegiance on honor of enough of the populace
to control the territory. Ruling a large territory requires more than a system of titles and perks. Order
can be maintained only by immediate, passive obedience to the rules; passive obedience can be
achieved only by an instilling fear. The multiplicity of views, the dissents, are stifled by fear.
192 Id. at bk. IX, ch. 1, p. 183.
193 Id.
194 THE ANTIFEDERALISTS 40 (Cecelia M. Kenyon ed., 1966).
195 Id.
196 Id. at 40-41.
197 Id. at 63.
According to Montesquieu, rule by fear, despotism, was a logical incident of the government of a
large territory. Montesquieu's theory continued that while a small republic could internally maintain
its republican character, it would be destroyed by foreign forces.192 The dilemma could be resolved
only by a confederate republic, a form of government in which small states become individual
members of an association which is able to provide security for the whole body.193
The Antifederalists used Montesquieu's well-known works to argue for a less powerful
central government and more autonomy for the individual states, a government which would more
closely resemble the Articles of Confederation model and Montesquieu's confederate republic rather
than that proposed by the Constitution. Antifederalist publications confirm that preserving the
autonomy of the states was a means to the end of protecting the people's rights, not an end (pg.1034) in
itself. In arguing against the new Constitution, the Pennsylvania Minority framed the question—"Is
it probable that the dissolution of the state governments, and the establishment of one consolidated
empire would be eligible in its nature, and satisfactory to the people in its administration?"194
The answer— "I think not, as ... so extensive a territory could not be governed, connected and
preserved, but by the supremacy of despotic power."195
The reason— Being "satiated with the blessings of liberty" after "asserting their inalienable rights
against foreign despots at the expense of so much blood and treasure," the
people will spurn the shackles prepared for them under the new Constitution
and confirm their liberties.196
Although the complaint was the dissolution of state governments, the problem was viewed as a loss
of the people's rights.
In another publication, an unidentified Pennsylvania Antifederalist, writing under the pen
name Montezuma, purported to be an advocate of the Constitution and to give the "inside story" of
the dark designs of the proponents. Montezuma suggested:
We have taken pains to leave the legislatures of each free and independent state, as they now
call themselves, in such a situation that they will eventually be absorbed by our grand
continental vortex, or dwindle into petty corporations, and have power over little else than
yoaking logs, of determining the width of cart wheels.197
Montezuma continued that state legislatures would be powerless when the national government
exercised exclusive control over commerce and the power to wage war, make peace, coin money,
198 Id. at 64.
199 Id.
200 Id. at 104-05.
201 One leading Antifederalist shared and advocated this view. Mason argued that the people's political happiness rested
on the state governments because the states, as smaller political units, provided more direct representation of the people. THE
ANTIFEDERALISTS, supra note 194, at 272.
202 3 THE PAPERS OF GEORGE MASON 1052 (Robert A. Rutland ed., 1970).
203 THE FEDERALIST No. 10 (James Madison).
204 FEDERAL & STATE CONSTITUTIONS OF THE UNITED STATES (Ben Poore Perley ed., 1924); Maryland, 817;
Massachusetts, 956; New Hampshire, 1279; New Jersey, 1310 (religion); New York, 1329; North Carolina, 1409; Pennsylvania,
1540; South Carolina, 1640; Virginia, 1910.
205 Id.; Maryland, 817; Massachusetts, 956; New Hampshire, 1279 (Bill of Rights added 1784); New Jersey religion; New
York, 1329 (militia, religion); North Carolina, 409; Pennsylvania, 1540; Virginia, 1910.
206 Id.; Massachusetts, 956; Maryland, 817; New Hampshire, 1279; New Jersey, 1310; New York, 1329; North Carolina,
1409; Virginia, 1910.
borrow money, organize the militia and call them forth to crush insurrections.198 By eliminating the
powers of the states, the clouds of popular insurrection would likewise be broken.199
Another Antifederalist writer, using the name John DeWitt, posed similar arguments to the
people of Massachusetts to influence the ratification convention (pg.1035) in that state. The writer,
whose true identity is unknown, argued that the strong national government would swallow up the
state governments in a hasty stride to a Universal Empire in the Western World. The predicted result
was a loss of the people's liberty.200 Again, the Antifederalist argument was that retention of power
by the states was necessary to secure the rights of the people.201
The Antifederalists, while believing the people's rights would be protected best by strong
state governments, did not trust those governments. Federalists also distrusted state governments.
Both groups distrusted any government because, as George Mason stated, "considering the natural
lust of power so inherent in man, I fear the thirst of power will prevail to oppress the people."202
James Madison similarly distrusted not only man's ambition for pre-eminence and power but also
the factionalism posed by groups of men organized and pursuing narrow interests under the banner
of state government.203
The Revolutionary era and state constitutions illustrate the distrust of the states' power. It
should not be surprising that Americans in the midst of a revolution against tyranny would be
suspicious of government, particularly when dealing with plans for their own government. As a
consequence, most of the state constitutions of the era vested primary governing authority in a
popularly elected legislative branch of government, not the executive,204 and contained a statement
for a bill of rights.205 All contained a statement that all power originally rests in the people.206 The
state constitutions of Massachusetts, North Carolina, and Pennsylvania contained an explicit
provision concerning the right to bear arms. The constitutions of Maryland, New Hampshire, New
York, and Virginia identified the necessity of maintaining the militia to preserve the free state. New
York's constitution, while providing for a militia but not a right to bear arms, also noted that Quakers
could not be compelled to bear arms. (pg.1036) Similarly, Maryland, New Hampshire, and Virginia
provided for a militia but not explicitly for the right to bear arms. They also provided for popular
207 Id.; New Hampshire, 1279.
208 Id.; Maryland, 818; Virginia, 1909.
209 EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 33 (1957).
210 Hardy, Armed Citizens, supra note 12, at 609.
211 Id.
revolt by giving the people the right to reform the government and the right to defend their life and
liberty207 and by providing that the doctrine of non-resistance against arbitrary power is slavish,
absurd, and destructive.208 In context, providing for the militia, defined at this time as the body of
people all bearing arms, appears to be the functional equivalent of providing each individual with
the right to bear arms.
VI. THE BILL OF RIGHTS
With ratification complete and the First Congress assembled, James Madison introduced
amendments setting forth what would eventually become the Bill of Rights. The ratification process
had produced a call for such a declaration. Madison and Hamilton had argued that ratification must
precede amendment and now the time had come to honor the implied promise that amendments
would be made. Madison campaigned for a seat in the first Congress on the pledge that he favored
amendments.209
Madison's first proposal was made on June 8, 1789, to the House of Representatives. It
embodied nineteen substantive items and appeared to track the suggestions made by the various state
conventions. Madison's first proposal was not in the form of a separate Bill of Rights. Instead, he
proposed amendment by interlineation, placement of the individual amendments in the text of the
Constitution. One of the proposed amendments was "that the right of the people to keep and bear
arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free
country; but no conscientious objector shall be compelled to render military service in person."210
Madison's proposal called for this right and the right to freedom of the press, religion, and speech,
to be inserted in Article 1, Section 9, between clauses 3 and 4. Article 1, Section 9 concerns
limitations on Congress's power over citizens, namely, no suspension of habeas corpus, no ex post
facto laws, and no bills of attainder. Madison's suggested placement of this amendment demonstrates
that he understood the right to bear arms to be an individual right. Had Madison viewed the right as
the states' right, the more logical placement of the right would have been in Article 1, Section 8,
clause 16, which reserves to the states the power to appoint the officers of the militia and provides
authority to train the same.(pg.1037)
In addition, Madison's notes regarding the introduction of his proposals contain an outline
which suggests he should read the amendments and explain that they first relate to private rights. He
then instructed himself to explain the deficiencies of the English Declaration of Rights. Among the
deficiencies was that the declaration was a mere act of Parliament and that guarantees were not
sufficiently broad, namely, no freedom of press or conscience and the restriction of arms to
Protestants.211
212 THE FOUNDERS CONSTITUTION 211 (Philip B. Kurland & Ralph Lerner eds., 1987).
213 Id.
214 See WILLIAM MILLER, THE FIRST LIBERTY 123 (1986).
215 The House labeled its sections of what became the Bill of Rights as "articles." See Mark P. Denbeaux, The First Word
of the First Amendment, 80 NW. U. L. REV. 1156, 1166 (1986).
216 DUMBAULD, supra note 209, at 46.
217 The Senate did so without explanation. See Hardy, Armed Citizens, supra note 12, at 611.
218 Of the two amendments that were defeated, one concerned the apportionment of representatives, and the other would
have prevented congressional salary increases from taking effect until after the next election of representatives. Peter Suber,
Population Changes and Constitutional Amendments: Federalism Versus Democracy, 20 U. MICH. J. L. 409, 440 (1987). The ten
amendments that were ratified became the Bill of Rights in 1791. Maeva Marcus, The Adoption of the Bill of Rights, 1 WM.&MARY
BILL OF RIGHTS J. 115, 118 (1992).
219 U.S. CONST. amend II.
Madison's proposals were referred to a select committee that reported to the House sitting
as a committee of the whole. When the proposal left the select committee, it read:
A well regulated Militia, composed of the body of the people, being the best security of a
free state, the right of the people to keep and bear arms shall not be infringed; but no person
religiously scrupulous shall be compelled to bear arms.212
In the House, the debate focused on the last clause. The argument was as follows:
Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the
maladministration of the Government; if we could suppose that, in all cases, the rights of
the people would be attended to, the occasion for guards of this kind would be removed.
Now, I am apprehensive that this clause would give an opportunity to the people in power
to destroy the Constitution itself. They can declare who are those religiously scrupulous and
prevent them from bearing arms.213
An amendment to remove the "religiously scrupulous" language failed.214 Madison yielded to
pressure to set forth amendments at the end of the Constitution. Seventeen articles of amendment
were sent to the Senate.215
The Senate streamlined the package by combining some amendments and simplifying others.
On the right to bear arms, the Senate omitted the words "composed of the body of the people" and
deleted the provision exempting (pg.1038) conscientious objectors from service.216 The Senate rejected
language that would have added the words, "for the common defense" as part of the phrase "the right
of the people to keep and bear arms (for the common defense) shall not be infringed."217 Ultimately
twelve articles were sent to the states for ratification. The first two failed, but the other ten were
ratified.218 The language of the Second Amendment, as adopted, read:
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.219
VI. CONCLUSION
English history made two things clear to the American revolutionaries: force of arms was the
only effective check on government, and standing armies threatened liberty. Recognition of these
premises meant that the force of arms necessary to check government had to be placed in the hands
of citizens. The English theorists Blackstone and Harrington advocated these tenants. Because the
public purpose of the right to keep arms was to check government, the right necessarily belonged
to the individual and, as a matter of theory, was thought to be absolute in that it could not be
abrogated by the prevailing rulers.
These views were adopted by the framers, both Federalists and Antifederalists. Neither group
trusted government. Both believed the greatest danger to the new republic was tyrannical
government and that the ultimate check on tyranny was an armed population. It is beyond dispute
that the second amendment right was to serve the same public purpose as advocated by the English
theorists. The check on all government, not simply the federal government, was the armed
population, the militia. Government would not be accorded the power to create a select militia since
such a body would become the government's instrument. The whole of the population would
comprise the militia. As the constitutional debates prove, the framers recognized that the common
public purpose of preserving freedom would be served by protecting each individual's right to arms,
thus empowering the people to resist tyranny and preserve the republic. The intent was not to create
a right for other (pg.1039) governments, the individual states; it was to preserve the people's right to a
free state, just as it says.

[Copyright © 1994 Valparaiso Univ. Law Review. Originally published as 28 VAL. L. REV. 1007-1039 (1994). For educational

 

Now I am not looking to get into an argument here with those that are anti-gun (I will have a civil debate with you though) and I do agree that change is needed.

The biggest issue is not the guns or gun ownership it is the criminal element and how it is addressed (or lack there of). The US currently has over 20,000 Federal Laws, regulations and notations on gun ownership, handling, sales and other gun related related issues; this does not include the number of the same Laws etc. in each state in addition to the Federal ones.

 

The change that is needed is not the addition of more laws or "stricter" gun laws; it is the reformation of the current standing amount of laws we have, condensing and enforcing laws that make sense and applying consequences that fit the bill just like any other situation. People focus on guns to much and do not lay the blame in the right direction. The commit a gun crime is the same as any other crime, the individual the commits the crime and why they do it. I can kill 10 people with 10 arrows almost as fast as I can kill 10 people with a gun its all down to point and shoot and how much ammo I chose to carry. Now somebody is going to attempt to call me out and say 'oh you cant do a comparison that way as arrow are not he same a bullets" hmm really? I can do more damage with the right arrow than I can with bullet. Even in the right situation I can can kill 10 random people in 10 minutes with a knife with practice. The amount of situations and weapons is endless for me to use. It just takes the right person, the mindset and will to do it to get the job done. If I wanted to kill say more than 10 I just make a bomb that is relatively easy to make (and no I will not under any circumstance admit to how it can be done). Nothing I have listed is out of a movie or some fantasy it is real world. 

Below is several types of hunting arrow heads designed to cause massive damage and bleed out to drop a deer 150lb+ (60kg+) or whatever else you chose to hunt inside a few seconds. Think I am wrong? and there are other types some larger.

 

People need to get a grip and stop focusing of the means of the killings and focus on why, the who and how it can be prevented. Capital punishment a way to this means, I am not saying this is the only way. What I am saying is that we need to find a way to fit the punishment to fit the crime, a way to discourage those from doing the act. But the thing is that those who want to, will no matter what will go through the act as they have no fear of the consequences be it religious, mental, blackmail, etc.

Focusing on gun bans does not solve the issue, another means will replace that one, and that will be banned (wash, rinse, repeat).

 

People will continue to think and espouse the opinion that the weapons are the problem [but the fact is that Any Thing is a weapon including people; which is the most dangerous weapon] and the circle continues till rocks are banned and though what I just explained, to no end will there be those that will want to continue the argument because they cannot see the forest for the trees and vise versa. I have said what I can on this multiple times in several different threads (and real life) but it will only make sense only to those willing to open their minds to reason and logic and see past preconception, outer influence and themselves to understand properly.

 

Making unfounded and stupid comments about Americans and their "gun toting" populace is not only ignorant but down right dis-respectful. It is also generalizing and profiling  which doing exactly what those espouse what not to do. If I made such comments about other countries not only would I receive immediate hate for it but I would be in the wrong.

I do not make such comments about your countries and I don't make unintelligent comments about how your countries are ran. I will in good manner make informed intelligent remarks about current or past events. If people cannot be respectful then don't bother posting, your opinion can be displayed for all to see but don't make a fool of yourself for no reason. Be responsible for your thoughts and be respectful.

 

TL/DL: None <--- If you really need this to get the point ... I don't how to help.

 

My apologies to the mods if I went overboard at the end.

[NeatSquidYT]

Yes they should. The fact that you can walk into a shop and buy a gun scares me, especially with all the fucking redneck weirdos.

[Real_PhillBert]

I impulse bought a new lower today, and they wanted to do a background check... The internet told me there are no background checks at all in the US, so I was a bit confused. /s

 

But seriously, check out my new lower!

 

 

 

It even tried to load itself!!!!! OMFGBBQ!!!!!!

 

[SansVarnic]

Yes they should. The fact that you can walk into a shop and buy a gun scares me, especially with all the fucking redneck weirdos.

Wow what a completely uninformed opinion you have.

 

Yes I can walk into a shop an buy a gun, but I can do that in Germany as well. As long as I get a permit to buy it first, which includes waiting for that background check and passing it which takes 30 days. Buying a gun on a whim from a store is not only illegal but does not happen.

[AlwaysFSX]

Okay, first of all I'm going to say that I've read the first 7-8 pages and had to stop because this is hilarious. First off, all of you people outside of America have zero idea what the problem(s) are in the States related to firearms or how to even interpret our own National data on gun deaths (a big chunk of deaths is suicides if not the biggest, not murders). Second, you cannot just walk in to a store and buy a firearm. Good fucking luck, even in Texas it isn't that easy. Third, the most used firearms for murders are pistols, not those scurry "assault rifles" you can gab on and on about. Fourth, most of the gun violence happens is in frankly gang-related areas. "Mass shootings" you see in the media don't actually happen as often as you think. Finally, the problem is not firearms, it's idiocy. Picture below for reasoning. We obviously have terrible mental health standards which is an entirely different discussion but instead of wasting time, energy, and money on trying to ban guns (good luck) we should take the money we spend on social programs that go nowhere and put it towards mental health where it'll have the greatest impact overall on quality of life and prevention of death.

 

 

Guns aren't the problem, people and their ignorance are.

 

Yes they should. The fact that you can walk into a shop and buy a gun scares me, especially with all the fucking redneck weirdos.

Lol no you can't.

[Guest Kloaked]

Yes they should. The fact that you can walk into a shop and buy a gun scares me, especially with all the fucking redneck weirdos.

 

You don't just walk into a shop and pay the cashier for a Desert Eagle.

 

I live in Georgia where people actually have CCWs and know how to use them, contrary to your "fucking redneck weirdos" comment. My dad carries because in his line of work (plumbing and irrigation), he often ends up in sketchy places to do work (not so much anymore), so he carries for protection. Luckily he's never had to use it for self defense.

 

However, there are a ton of cases in my city since we have a "ghetto" area where underprivileged teenagers didn't have the luxury of having parents who cared about them, will go and join gangs. They will get their hands on weapons that have their serial numbers removed (yes, every firearm sold in the states has some sort of identification on it under someone's name). Most of the time these people are caught before they're even able to do anything with the weapon because most of them are fucking retarded to begin with.

 

You can't sit there in your uppity attitude telling me that America has a gun problem. No, we have an educational and parental problem - these two things are essential to your mental health and how you will be able to cope with the world. We have firearms for recreational and self-defense use.

 

There's countless cases of proper self defense that would have turned ugly for the victims that don't make the headlines because those stories don't create controversy. You and every single person in this thread should be able to realize this because you're on the internet, and you're on this forum. You know what clickbait looks like and you know how the media operates.

[stconquest]

...interesting.

[SansVarnic]

...interesting.

 

always.