I. State Constitutions Contemporaneous with the Second Amendment
The Second Amendment to the United States Constitution was written in 1789 and sent by Congress to the States for ratification.[6] Ratification was achieved in 1791.[7] Four state constitutions from the very early Republic -- Pennsylvania, Vermont, North Carolina and Kentucky -- provide important evidence about the meaning of the right to arms in the period surrounding the adoption of the Second Amendment.
Pennsylvania: The present-day Pennsylvania Constitution, using language adopted in 1790, declares: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."[8]
Pennsylvania’s first constitution, adopted in 1776, stated in its Declaration of Rights: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power."[9]
It is sometimes claimed that the phrase "bear arms" in the Second Amendment is a term of art referring only to bearing arms while serving in a militia.[10] Both in 1790 and 1776, the drafters in Pennsylvania used the language "bear arms in the [or 'for'] defence of themselves and the state."[11] This language has always been interpreted by Pennsylvania courts to protect the right of all Pennsylvanians, not just militiamen, to possess firearms.[12] The Pennsylvania language suggests that "bear arms" is not a term of art which means only militia usage and nothing else.
A recent opinion by Justice Ruth Bader Ginsburg suggests that "bear arms" continues to encompass carrying guns for diverse purposes.[13] Analyzing the statutory phrase "carries a firearm," she wrote:
Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") and Black's Law Dictionary indicate, "wear, bear, or carry...upon the person or in the clothing or in a pocket, for the purpose...of being armed and ready for offensive or defense action in case of a conflict with another person."[14]
Vermont: Adopted in 1777, the Vermont Constitution closely tracks the Pennsylvania Constitution.[15] It states "That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power."[16]
Vermont, like Pennsylvania, contributed part of this language to the federal Second Amendment, evidencing the state’s interpretation that recognition of the people’s right to bear arms was a recognition of an individual right. Vermont courts have been especially strict in protecting individual arms rights when interpreting the state constitution. For example, an 1892 decision declared that the government could not require licenses for the carrying of concealed weapons.[17]
One of the most important elements of Vermont’s right to arms language is the juxtaposition of a right to bear arms with a denunciation of standing armies. The fact that Vermont's right to bear arms has been interpreted as individual shows that concern about standing armies does not negate the guarantee of a fundamental personal right to arms.
North Carolina: Like Pennsylvania, North Carolina adopted an arms right in 1776.[18] The North Carolina Bill of Rights reads in part, "[t]hat the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power."[19]
The 1776 adoption of the phrase "the people have a right to bear arms" precedes James Madison's derivative use of a substantially similar phrase when he wrote the Second Amendment in 1789.[20] The 1776 North Carolina Constitution declares the right is "for the defence of the State," but delineates no other purpose.[21] This "right to bear arms" language is included in the same sentence as denunciations of and restrictions on standing armies. This language would be expected to lend strong support to arguments that the Second Amendment was intended exclusively to promote state militias so as to reduce the power of the federal standing army[22] and that the only purpose of the Second Amendment is collective defense, not individual arms possession for personal defense.[23]
However, the North Carolina Constitution has always been, without dissent, construed to guarantee a right of ordinary citizens to carry weapons for personal protection.[24] The language of the state constitution, unlike the Second Amendment, explicitly denounces and controls standing armies and specifies only one purpose for the right to bear arms: "the defence of the state."[25] A fortiori, the 1776 North Carolina Constitution would protect, at most, people in active militia service, but in 1843, the North Carolina Supreme Court explained that "[f]or any lawful purpose -- either of business or amusement -- the citizen is at perfect liberty to carry his gun."[26]
In 1868, after the Civil War, North Carolina recreated its state constitution, adopting language which directly copied the federal Second Amendment.[27] The same constitutional clause also denounced standing armies: "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; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up, and the military should be kept under strict subordination to, and governed by, the civil power."[28]
Again, if the federal Second Amendment is only about controlling standing armies, then the 1868 North Carolina arms right should, a fortiori, only be about controlling standing armies, since standing army language appears in the very same sentence as the arms right. Yet the North Carolina provision has always been construed as protecting an individual right.[29]
The individual nature of the 1868 North Carolina guarantee, mimicking the Second Amendment, was underscored by an 1875 amendment: "Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice."[30] If the North Carolina arms right were only about controlling standing armies, or only about affirming the state militia, it would make no sense for North Carolina to carve out an exception in order to allow the legislature to ban or restrict the carrying of concealed weapons. The concealed weapons control is aimed at individuals, not at active militiamen, who can simply be ordered to carry their guns in the manner their commanding officers insist. Again, the North Carolina constitution has always been interpreted to protect an individual right to arms.[31]
Therefore, from the North Carolina Constitution, we see:
· Concerns about standing armies do not negate the individual nature of the arms right.
· A reference to "the defence of the state" does not negate the individual nature of the arms right.
· The creation of an exception to allow restrictions on concealed carry underscores the nature of the arms right.
· The exact wording of the Second Amendment is interpreted as recognizing an individual right in North Carolina state courts.
These themes will be continually supported by examination of other state constitutions.
Kentucky: The 1792 Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791.[32] Kentucky declared: "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."[33]
The year after the Second Amendment became the law of the land, Kentucky's constitutional drafters used the phrase "bear arms" to include bearing arms for personal and collective defense: "in defence of themselves and the state."[34] This language suggests that "bear arms" was not commonly understood as encompassing only militia service.
In 1822, a Kentucky Supreme Court decision declared a law against carrying concealed weapons invalid.[35] This led to an 1850 revision in the Kentucky Constitution to allow restrictions on concealed carry.[36] This was also the basis for the restrictions on concealed carry written into many state constitutions. The final form of the Kentucky arms right was enacted in 1891:
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties. . . .
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.[37]
II. Is the Second Amendment Mainly about Federalism?
Having examined some very early states’ right to arms guarantees, let us now jump ahead to 1959 and to the last states that joined the Union.[38]
Alaska and Hawaii: Both Alaska and Hawaii copied the Second Amendment verbatim into their state constitutions.[39] The arms right provision in both states 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."[40]
It is sometimes argued that the Second Amendment right belongs only to state militias, to protect them from disarmament by the federal government.[41] The guarantees made by the Alaska and Hawaii Constitutions contradict this argument. If the argument were true, then it would be preposterous for the people of Alaska and Hawaii to place in their constitution language which is identical to the Second Amendment. Because of the Supremacy Clause in the United States Constitution,[42] nothing in the Alaska or Hawaii Constitutions could prevent the federal government from disarming a state militia. The obvious reason that the people of Alaska and Hawaii placed the exact language of the Second Amendment in their state constitutions was to keep the state governments from disarming the people of their respective state. The people of Alaska and Hawaii chose these precise words because they understood those words as used in the United States Constitution to prevent the United States government from disarming the people of the United States.
In 1994, the people of Alaska added additional protection to their arms right by specifically labeling the right "individual," by specifically prohibiting local governments from restricting the right, and by changing "infringed" to "denied or infringed."[43] The people of Alaska may have been acting with a great abundance of caution, since the 1994 addition merely restated what was already in the 1959 Constitution: that the arms right limited the power of local government as well as state government,[44] that the right was individual, and that the right could not be "denied."[45]
Hawaii simply interprets its state constitutional right to arms[46] and gets the same result. Hawaiians have an individual right to arms, which may not be denied by the state or by local governments.[47] Of course, Hawaii has extensive gun controls, while Alaska has very few.[48] The issue for this article, however, is not whether any particular gun control is constitutional, but simply whether the text of state constitutions suggests that the federal Second Amendment protects a meaningful individual right.
South Carolina: Like North Carolina, Alaska, and Hawaii, the state of South Carolina adopted the Second Amendment verbatim.[49] South Carolina also copied North Carolina’s language denouncing standing armies: "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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it."[50]
In South Carolina, the state constitutional right to arms, with the exact same language as the Second Amendment, is read just as it is in Alaska, Hawaii, and North Carolina: as guaranteeing a right of individuals to bear arms. If Second Amendment language were about state’s rights, rather than about individual rights, then surely one would expect the state’s rights interpretation to prevail in South Carolina, the state which affirmed state’s rights by seceding and thereby starting the Civil War – providing the South Carolina militia with an opportunity to assert its independence from federal control. Yet even in South Carolina, the precise language of the Second Amendment is recognized as guaranteeing individual rights, not militia independence. |
