WHO POSSESSES THE RIGHT TO BEAR ARMS? IN ONE VIEW, IT'S THE INDIVIDUAL, NOT THE STATE
HISTORICAL INTERPRETATION
The Bush Justice Department's May 6 decision to support an
individual's right to own guns independent of a militia is a reversal of
previous administrations' positions. But the author argues that there
is ample evidence to show that the individual right to own guns was
well-accepted in the 1700s and 1800s. He lays out his evidence in
the chronology below, and also shows how opinions shifted in the
1900s, when the first major federal gun-control laws were passed.
1765: Sir William Blackstone, a powerful influence on the Framers'
thinking, publishes his famous ``Commentaries on the Laws of
England.'' He describes the British right to bear arms, a predecessor
to the Second Amendment, as one of ``the rights of the subject'' --
in other words, an individual right.
1776: Pennsylvania enacts the first state bill of rights, which protects
the right to bear arms gun-ownership right from being abridged by
the state. This provision and similar ones in other early state
constitutions are evidence that the right to own guns was aimed at
constraining state governments rather than empowering them to
form militias.
1788: New York, North Carolina and Virginia demand that Congress
secure the right to bear arms, and they define ``militia'' as the
citizenry at large. Rhode Island makes a similar demand in 1790.
1791: The U.S. Bill of Rights is enacted, including the Second
Amendment: ``A well-regulated militia, being necessary to the
security of a free state, the right of the people to keep and bear
arms shall not be infringed.'' The phrase ``the right of the people'' is
also used in the First and Fourth amendments, which secure
individual rights to petition the government and to be free of
unreasonable searches and seizures.
1792: Passage of the federal Militia Act, which defines ``militia'' as
all able-bodied white male citizens ages 18 to 45 -- not as a small
National Guard-like group. Constitutional amendments passed after
the Civil War eliminate the racial restriction.
1803: St. George Tucker, the first prominent American legal
commentator, publishes his edition of Blackstone's Commentaries,
applying them to U.S. constitutional law. He says the Second
Amendment prevents the government from disarming the citizenry.
1833: U.S. Supreme Court Justice Joseph Story, the leading American
constitutional commentator of the early 1800s, in his
``Commentaries on the Constitution of the United States,'' describes
the Second Amendment right to bear arms as belonging to ``the
citizens,'' and echoes Tucker's view.
1866: Congress enacts the Freedmen's Bureau Act. Part of it aims to
protect the ``constitutional right to bear arms'' for black people,
alongside their rights to ``personal liberty'' and to owning property.
1880: Michigan Supreme Court Justice Thomas Cooley, the leading
American constitutional scholar of the 19th century, stresses in his
``General Principles of Constitutional Law'' that the right to own
guns belongs to all the people, not just a small subgroup.
1934: The National Firearms Act -- the first major federal gun-control
law -- is enacted. It is mostly aimed at weapons associated with
organized crime, such as machine guns and sawed-off shotguns.
1939: The U.S. Supreme Court, in United States vs. Miller, says the
Second Amendment protects only those arms that have ``some
reasonable relationship to the preservation or efficiency of a
well-regulated militia.'' But the court also stresses that ``militia''
means ``all males physically capable of acting in concert for the
common defense.'' The court does not say that the right belongs to
the states or the National Guard. It is the court's only modern
Second Amendment decision. (From 1820 to 1998, the court has
referred to the Second Amendment 28 times, usually tangentially.
Twenty-two of the 28 opinions quote only the right-to-bear-arms
clause, without mentioning the militia language.)
1942: Two lower federal court decisions treat the Second
Amendment as securing a states' right, beginning a trend that
continues to this day.
1956: The current Militia Act is passed, defining ``militia'' as all male
citizens age 17 to 45. (Given recent constitutional decisions, today
this probably includes women, too.)
1960: Sens. John F. Kennedy and Hubert Humphrey express support
for the ``right of each citizen'' to bear arms. Their views illustrate
that even as lower federal courts adopted a states-right view of the
Second Amendment, many politicians and average citizens continued
to view the right as an individual one.
1968: The Gun Control Act of 1968 is enacted. It requires
professional gun dealers to get licenses, bans felons from
possessing guns and sets up a variety of other gun controls. This
marks the start of a 30-year period in which Congress enacts a
string of gun-control laws.
1986: The bipartisan Firearms Owners' Protection Act is enacted. It
specifically asserts that the right to bear arms is an individual right.
2000: Liberal legal scholar Laurence Tribe of Harvard Law School
concludes, in his widely respected Constitutional Law treatise, that
the Second Amendment secures a individual right to own guns. His
position is in line with many other recent legal writers, conservative
and liberal alike.
2001: In United States vs. Emerson, the 5th U.S. Circuit Court of
Appeals rules that ``the Second Amendment does protect individual
rights,'' but allows ``limited, narrowly tailored specific exceptions or
restrictions.'' This is the first time a federal court of appeals adopts
the individual-rights view. Emerson was accused of possessing a
firearm while under a domestic restraining order.
2002: The Department of Justice adopts the individual-rights view in
two filings to the Supreme Court, one on the Emerson case and
another on a case involving a ban on unlicensed machine gun
possession.
This timeline is by Eugene Volokh. For the documents listed in this
timeline, go to volokh.blogspot.com and click on ``Sources on
the Second Amendment.''
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