Part II
2.
Textual Analysis
. . . . . A textual analysis of the Second Amendment supports an individual right to bear arms. A distinguishing characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its purpose. No similar clause is found in any other amendment. Stanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 644 (1989). While states' rights theorists seize upon this first clause to the exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses, rather than construe them as being mutually exclusive.
. . . . . The amendment reads "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. Within the amendment are two distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its independent clause, "the right of the people to keep and bear Arms, shall not be infringed", then there would be no question whether the right is individual in nature. David E. Johnson, Note, Taking a Second Look at the Second Amendment and Modern Gun Control Laws, 86 KY. L.J. 197, 200 (1997-98).
. . . . . Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. Id. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. Id. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized. Id. at 201.
. . . . . The Supreme Court recently interpreted the text of the Second Amendment and noted that the phrase "the people" in the Second Amendment has the same meaning in both the Preamble to the Constitution and in the First, Fourth, Fifth, and Ninth Amendments. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The Court held that the phrase "the people" "seems to have been a term of art employed in select parts of the Constitution."
The Second Amendment protects "the right of the people to keep and bear Arms", and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people."
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While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904).
. . . . . The Court has also held that given their contemporaneous proposal and passage, the amendments of the Bill of Rights should be read in pari materia, and amendments which contain similar language should be construed similarly. Patton v. United States, 281 U.S. 276, 298 (1930), cited by David Harmer, Securing a Free State: Why the Second Amendment Matters, 1998 BYU L. REV. 55, 61 (1998). The Court's construction of "the people" as used in the Second Amendment supports a holding that the right to keep and bear arms is a personal right retained by the people, as opposed to a collective right held by the States. Thus, a textual analysis of the Second Amendment clearly declares a substantive right to bear arms recognized in the people of the United States.
3.
Historical Analysis
. . . . . "[T]here is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610 (1994). A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right.
a.
English History
. . . . . A review of English history explains the founders' intent in drafting the Second Amendment. As long ago as 690 A.D., Englishmen were required to possess arms and to serve in the military. David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL'Y 559, 562 (1986) (citing 1 JOHN J. BAGLEY & PETER B. ROWLEY, A DOCUMENTARY HISTORY OF ENGLAND 1066-1540, at 152 (1965)). This obligation continued for centuries, requiring nobility, and later commoners, to keep arms and participate in the militia. Id. at 563-65. The obligation to keep arms was not simply to provide military service in the king's army; English citizens were also required to provide local police services, such as pursuing criminals and guarding their villages. CLAYTON E. CRAMER, FOR THE DEFENSE OF THEMSELVES AND THE STATE: THE ORIGINAL INTENT AND JUDICIAL INTERPRETATION OF THE RIGHT TO KEEP AND BEAR ARMS 24-25 (1994); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 2 (1994).
. . . . . By the middle of the seventeenth century, however, the sovereign jeopardized the individual right to bear arms. Charles II, and later James II, began to disarm many of their Protestant subjects. Hardy, supra, at 574-79. James II was an unpopular king whose policies stirred great resentment among both the political and religious communities of England. David E. Murley, Private Enforcement of the Social Contract: Deshaney and the Second Amendment Right to Own Firearms, 36 DUQ. L. REV. 15, 19 (1997). Eventually, James II fled England during what was later termed the Glorious Revolution. Hardy, supra, at 579. In the aftermath of the Glorious Revolution, Parliament passed the English Bill of Rights in 1689, codifying the individual right to bear arms. Id. at 580. The Bill of Rights provided that "the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law." Id. at 581.
b.
The Colonial Right To Bear Arms
. . . . . The American colonists exercised their right to bear arms under the English Bill of Rights. Indeed, the English government's success in luring Englishmen to America was due in part to pledges that the immigrants and their children would continue to possess "all the rights of natural subjects, as if born and abiding in England." MALCOLM, supra, at 138. As in England, the colonial militia played primarily a defensive role, with armies of volunteers organized whenever a campaign was necessary. Id. at 139. Statutes in effect bore evidence of an individual right to bear arms during colonial times. For example, a 1640 Virginia statute required "all masters of families" to furnish themselves and "all those of their families which shall be capable of arms . . . with arms both offensive and defensive." Id. (citing THE OLD DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY OF VIRGINIA, 1606-1689, at 172 (Warren M. Billings ed., 1975). A 1631 Virginia law required "all men that are fittinge to beare armes, shall bring their pieces to church . . . for drill and target practice." Hardy, supra, at 588 (quoting 1 WILLIAM W. HENING, THE STATUTES AT LARGE: BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 173-74 (reprint. 1969) (1823). These laws served the twofold purpose of providing individual self-defense while giving England a reserve force available in time of war. Murley, supra, at 20.
. . . . . Following the French and Indian War, England increased taxes and stationed a large army in the colonies. On April 3, 1769, the Boston Evening Post announced that colonial authorities urged the citizenry to take up arms. In reply to the claim that this request was unlawful, the newspaper observed that:
It is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms as expressly recognized by the Bill of Rights, and who live in a province where the law requires them to be equipped with arms, are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.
. . . . . Hardy, supra, at 589-90 (quoting OLIVER M. DICKERSON, BOSTON UNDER MILITARY RULE 61 (1936)). Shortly after the "Boston Tea Party", British soldiers, led by General Gage, attempted to disarm the colonists. MALCOLM, supra, at 144. The British Parliament banned all exports of muskets and ammunition to the colonies and began seizing the colonists' weapons and ammunition. Id. The British efforts to disarm the colonists hardened American resistance. At that point, the colonists began to form the "minutemen", a nationwide select militia organization. Hardy, supra at 890. In February 1775, a colonial militia prevented the British from seizing weapons at an armory in Salem, Massachusetts. Two months later, the colonists defeated British troops at Concord. Id. at 591. Distinguished colonial leaders, such as George Washington and Samuel Adams, strongly influenced the organization of these local militias. STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 60-61 (1984).
. . . . . The "militia" which won the Revolutionary War consisted of all who were treated as full citizens of the community. George Mason stated, "Who are the militia? They consist now of the whole people." Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 647 (1989) (citing statement of George Mason (June 14, 1788), in 3 JONATHAN ELLIOTT, DEBATES IN THE GENERAL STATE CONVENTIONS 425 (3d ed. 1937)). Similarly, the Federal Farmer referred to a "militia, when properly formed, [as] in fact the people themselves." Id. (quoting RICHARD HENRY LEE, OBSERVATIONS LEADING TO A FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION: LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 123 (Walter H. Bennett ed., 1978)).
. . . . . The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists' victory over the British army in the Revolutionary War. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebears one hundred years earlier in the English Bill of Rights.
c.
The Ratification Debates
. . . . . A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?" MALCOLM, supra at 157 (citing 2 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 97 (2d ed. 1863)). Noah Webster similarly argued:
Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.
Id. (citing NOAH WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION (1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES, PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788, at 56 (Paul L. Ford, ed. 1971) (1888)). Richard Lee Henry's view that a well regulated militia was the entire armed populace rather than a select body of men was reiterated by proponents to a bill of rights. As "M.T. Cicero" wrote to "The Citizens of America":
Whenever, therefore, the profession of arms becomes a distinct order in the state . . . the end of the social compact is defeated . . . . No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defence of the state . . . . Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.
HALBROOK, supra at 72 (citing STATE GAZETTE (Charleston), Sept. 8, 1788). . . . . .
. . . . . George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia." Id. at 74 (citing 3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 380 (2d ed. 1863)). He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Id. (citing 3 ELLIOT at 425-26). Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.
. . . . . The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights" which he proposed to be added to the Constitution. HALBROOK, supra at 223 n. 145 (citing James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)).
. . . . . The framers also saw an armed populace as the safeguard of religious liberty. Zachariah Johnson told the Virginia convention their liberties would be safe because
the people are not to be disarmed of their weapons. They are left in full possession of them. The government is administered by the representatives of the people, voluntarily and freely chosen. Under these circumstances should anyone attempt to establish their own system [of religion], in prejudice of the rest, they would be universally detested and opposed, and easily frustrated. This is the principle which secures religious liberty most firmly. The government will depend on the assistance of the people in the day of distress.
MALCOLM, supra at 157 (citing 3 ELLIOT 646)). |
