Lawsonline™ Legal Topics
Judicial Interpretation of the Second Amendment
Over a hundred and seventy years ago, Justice Green of the Tennessee State Supreme Court in the opinion for Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) stated:
"Suppose it were to suit the whim of a set of ruffians to enter the theatre in the midst of the performance, with drawn swords, guns, and fixed bayonets, or to enter the church in the same manner, during service, to the terror of the audience, and this were to become habitual; can it be that it would be beyond the power of Legislature to pass laws to remedy such an evil? Surely not....It is true, it is somewhat difficult to draw the precise line where legislation must cease and where the political right begins, but it is not difficult to state a case where the right of legislation would exist." 
Those who watch the headlines in the news today cannot help but see an uncanny parallel between the hypothetical scenario given by Justice Green and the tragic mass shootings of the last few decades. However, this opinion also highlights the perplexing questions about the regulation of arms: What is the line between legislation and a political right? Or between law and a personal right? Is firearm regulation appropriate? If so, how much? When is a right infringed? How does society protect itself from the few who would strike "terror to the people"? When does "police power" become arbitrary? Most discussions about gun rights and gun control in the media and in public center around these perplexing questions of how to make an imperfect society safer for our families and communities. A gun rights advocate may argue that regulation can erode the constitutional right unnecessarily and laws should focus on stricter punishment for those who misuse firearms - punish the behavior rather than infringe a right. A gun control advocate may argue these laws "come too late" and stricter regulation is required which may include purchasing requirements to limitations on modes of carry. Both sides push legislators to enact laws they think correct. As with any divisive issue, laws are then challenged by either side and it eventually falls upon the courts to address the guarantees and/or limits set in the Second Amendment of the U.S. Bill of Rights as well as the numerous "right to arms" provisions found in the several state constitutions.
Judicial interpretation of the Second Amendment is much more variable than some die-hards on either side of the debate may like to admit. As is seen in the short history and comparative charts below, aspects of all three interpretations of the Second Amendment have been upheld by the courts. As discussed in our introductory article, "Interpreting the Second Amendment," there are several interpretations but the three predominant versions are for an individual, a collective, or a civic right. The limits and guarantees of the amendment are further debated within these interpretations. For example, some who interpret the Second Amendment as an individual right believe "reasonable regulation" is a slippery slope and any infringement is not acceptable while others believe some regulation can be enacted which still protects the personal right to arms. For our purposes here we are relying on these general definitions for each interpretation:
|The Second Amendment protects a personal right to bear arms for self-defense so an individual can protect their life, liberty, and property. These arms also help individuals protect the country in times of need but likewise serve as a reminder to the government to respect the liberties of its free citizens.
||The Second Amendment was designed to protect the states and the state militias against encroachment by the federal government. An individual only has the right to keep arms in service of the militia and bear them to protect the sovereignty of the state and maintain order for the state.
||The Second Amendment protects the people and their government (both federal and state) through the militias. Citizens have a duty to keep and bear arms that can be regulated (e.g. assigned and inventoried) to maintain a strong militia and negate the need for a standing army.
Judicial interpretation of the Second Amendment by the courts have supported all three of these interpretations and, at times, uphold ideas found in more than one. The Second Amendment's limitations on the federal government, the importance of the militia clause, and the right to self-defense receive the most varied interpretation by the courts. However, the courts have remained most consistent in favoring "reasonable regulation" and have usually focused on specific types of arms deemed dangerous at the time. A historical review of Supreme Court, State Supreme Court, and Federal Circuit Court cases illustrates that the Second Amendment was not always interpreted directly or clearly and justices and judges frequently responded to the influences of contemporaneous events and opinion in support of "reasonable regulation."
Interpreting the Constitution
The influence of current events and popular opinion on judges may seem like inevitable reality. But the role of the courts, especially when interpreting the Constitution, is to be the non-partial third party. In The Federalist Papers 78, Alexander Hamilton highlighted the role of the courts as an intermediary for the people to ensure that legislation does not conflict with the Constitution as, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." The judicial review by the Supreme Court maintains a plenary position of importance in matters of the Constitution over legislation. Likewise, the interpretation of state constitutions and declaration of rights by state supreme courts also provide a final check on laws enacted by local governments. The courts maintain a course that allows for change but respects the original intent and protections of these documents. For this reason, courts are more consistent and conservative towards change whereas legislators are more susceptible to passing laws that match the current desires of their constituents.
Until recently, the legal impact of the Second Amendment was small. The political utility of the amendment has been more significant and volatile since WWI. Legislators enacted laws such as the National Firearms Act of 1934 in direct response to a proliferation of "gangster weapons" and the Gun Control Act of 1968 after political assassinations and civil unrest rocked the 1960s. Congress has debated the Second Amendment both when enacting legislation and under special Congressional committees that promote popular interpretations from their constituents. Many legislators promote the individual interpretation of the right to arms but vary as to the degree of regulation they deem appropriate.
The Supreme Court did not directly support the individual interpretation of the Second Amendment until decades after Congress in the District of Columbia v. Heller, 554 U.S. 570 (2008) decision. Before then, the decision of U.S. v. Miller, 307 U.S. 174 (1939) was often used in subsequent cases, including several in federal circuit and state courts, to justify a collective interpretation. Nonetheless, as is seen in the charts below, the circumscriptive court opinions often allow for more than one interpretation. In part, this is due to the fact that the courts were not focused on discussing the Second Amendment in and of itself but instead concerned with questions of "reasonable regulation." When one looks at the historical context of these court cases and the discussion of contemporaneous events within the opinions themselves, it becomes apparent that the courts were often determining the limits of police regulation while directly responding to public concerns and fears regarding violence in society. The personal or political right to arms was not as important to the courts as was the question of how much that right could be regulated. While it is true the first can influence, to some degree, the latter, historically, with a few exceptions, both individual and collective interpretations by the courts have still resulted in the preference for "reasonable regulation" over an absolute right.
The focus of the courts on determining the limits of "reasonable regulation" has not been lost on advocacy groups who advance their views of gun control in Congress. These same groups also promote their interpretation in the courts where they know legislation is ultimately tested. For example, the NRA's Institute for Legislative Action participates in litigations around the country and maintains a list of lawyers amenable to protecting the individual interpretation of the Second Amendment. The American Bar Association, which used to support the collective interpretation, now focuses on maintaining and promoting legislation that reduces gun violence. Despite this added advocacy, the courts continue to maintain their distance from determining the effectiveness of a policy and instead focus on the limits of regulation. It then falls on the legislative bodies to amend laws or, in some cases, even the constitution to meet the limits determined by the court.
The courts are instrumental in protecting constitutional rights and providing clarification and interpretation of those rights. The Second Amendment does not appear in as many cases as some of the other amendments and some rulings only provide indirect interpretations of the amendment. A historical review of some of the decisions by the United States Supreme Court, State Supreme Courts, and Federal Circuit Courts throughout the country illustrates how the courts often maintain some level of regulation that mirror the concerns of their time.
Historical Context and Trends in Court Decisions
The different weapon regulations that challenge the limits of the national Second Amendment and the numerous similar amendments in state constitutions were not created in response to one singular event. Instead, weapon technology, the growth of urban centers, the development of police departments, racial fears and mistrust, labor movements, and general shifting attitudes and perceptions in society are a few of the events and ideas that have influenced local, state, and national legislation. Not every such law has been challenged in the courts, but those that have been provide a glimpse at the changes in definitions and expectations that influenced the "right to keep and bear arms" provisions.
The national Second Amendment was ratified in 1791 and would not be challenged in the courts until the 19th century. As the introductory article in this series outlined, during the late 18th century there was a general consensus that responsible armed citizens were the safest and surest protection for the new nation. They became the state militias which provided a safe alternative to a standing army, answered the "hue and cry" to police their communities, and defended themselves when pressed. Indeed, the First Militia Act of 1792 required free able-bodied white males 18-45 to acquire arms and bring those weapons when mustered for inspection to ensure compliance. In some states, such as New York, the right to arms was idealized as, "the duty of every man who enjoys the protection of society to be prepared to defend it." In others, such as Pennsylvania, the right to arms was, "for the defence of themselves and the state." The limits of these protections and the social expectations that accompanied the right to arms appeared in the courts near the turn of the century. For example, Dr. James Reynolds defended his use of a pistol for self-defense during a 1799 riot incited by the Alien and Sedition Acts by invoking the state constitution and the common law of Pennsylvania. The prosecution argued that Dr. Reynolds had a duty to flee confrontation and exhaust all possibilities before using deadly force. The defense argued that the riot created enough turmoil to justify his actions but the doctor should have used a dirk or sword to defend his honor, not a pistol. Interestingly, the use of arms was ultimately decided under common law rather than the state constitution. More importantly, this case shows that both behavior and the weapon used influenced the characterization of the accused. From this early date there is a distinction of honorable weapons and behavior versus the habits and tools of the "ruffian" that would increasingly influence arms regulation throughout the 19th century.
1800-Civil War (1865)
Prior to the Civil War, the debate between an individual and civic right to arms was already developing. Several states enacted laws against concealed weapons and/or banned specific weapons considered a threat to civilized society. Some believed these laws to be a threat to personal liberty while others praised them as necessary for the protection of public liberty. Historian Saul Cornell notes that during the Jacksonian era the personal right to arms "crystallized" while some contemporaries bemoaned this independence that preferred individual perseverance and vigilantism over civic and collective action.
|The first Supreme Court legal challenge to mention the Second Amendment in terms of joint authority was Houston v. Moore, 18 U.S. 1 (1820) which determined that the national government and states had concurring authority over the state militias. The Constitution rather than the Bill of Rights was the focus of the opinion. A better sense of the variation in the legal interpretation of Second Amendment appears in the legal commentaries written early in the 19th century. St. George Tucker, who served on Virginia's Supreme Court, published an edited version of William Blackstone's Commentaries in 1803 which served to clarify American law within its English tradition. His annotations directly link the Second Amendment with the natural right to self-defense. William Rawle, a district attorney for Pennsylvania, wrote A View of the Constitution in 1825, in which he interpreted the Second Amendment as having a limit on both the federal and state governments that prevents the, "blind pursuit of inordinate power." However, the states, not the federal government, can still make reasonable laws that preserve the public peace and punish those who abuse the right. Finally, the Commentaries on the Constitution published in 1833 by Supreme Court Justice Joseph Story is the most cited but also the most contentious work on the subject since it can be read to support multiple interpretations (the quote is provided in its entirety on the right). It should be noted that individual interpretation highlights the need of citizens to be armed to check the government if necessary. The collective interpretation follows that this can only be done by the states because of the need for organization. The civic interpretation focuses on the warning by Justice Story that the public obligation is being ignored in favor of individual rights which will undermine its purpose entirely. These were the popular commentaries referenced by judges and attorneys before the Civil War.
||§ 1890 The importance of this article [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
-- Justice Joseph Story, Commentaries on the Constitution of the United States, 1833
Most of the discussion and interpretations of the right to arms before the Civil War took place within the individual states. While many state constitutions included provisions protecting "arms in defense of himself and the state," this did not stop legislators from enacting bans on concealed weapons. Kentucky and Louisiana enacted the first bans in 1813 which was followed by similar laws in Indiana, Georgia, Virginia, Alabama, Ohio, and Tennessee. Certain weapons were more suspect and laws restricting bowie knives, pocket pistols, dirks, and sword canes became more common. Two of the earliest State Supreme Court cases questioning the constitutionality of banning concealed weapons were centered on a sword-cane and a bowie knife. In Bliss v. Commonwealth, 2 Littell 90 Ky., 13 Am. Dec. 251 (1822) the Kentucky Supreme Court ruled that any infringement on the right to arms violated the state constitution since, "whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution." This ruling was unpopular and the state legislature responded by amending the state constitution and added that "the general assembly may pass laws to prevent persons from carrying concealed arms." Tennessee's Supreme Court also disagreed with the Bliss v. Commonwealth ruling and held that concealed weapon bans were constitutional. The court argued in Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840),
“To hold that the Legislature could pass no law upon this subject by which to preserve the public peace, and protect our citizens from the terror which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil of infinitely greater extent to society than would result from abandoning the right itself.” 
Most courts accepted concealed weapon bans following the Aymette v. State model. Even in cases where the courts recognized an individual's right to use arms for self-defense, they supported bans on concealed weapons since it was only open carry that incited, "men to a manly and noble defense of themselves," and regulation of concealed carry did, "not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms."
However, while the courts supported general "open carry" for white men, the rising tensions over slavery and the increasingly militant language of abolitionists spurred laws and amendments to state constitutions that prohibited blacks from bearing or keeping arms. Prohibiting certain groups from bearing arms was not new as Native Americans were barred from purchasing and keeping arms before the American Revolution. However, the increased legislation that prevented free blacks from owning firearms coincided with events that incited racial fears. For example, Delaware, Maryland, Virginia, Georgia, and Tennessee passed laws against blacks possessing firearms during the three years after Nat Turner's slave rebellion in Virginia in 1831. Racial tensions and fears would continue to influence the interpretation of the Second Amendment after the Civil War.
During second half of the 19th century the courts continued the trend of upholding laws that banned the concealed carry of certain "dangerous" weapons. But the renegotiation of norms after the Civil War, racial tensions in the South and North, the continued growth of cities, and the labor movement in the latter half of the century spurred conflicts that pushed the courts to interpret the expectations and limits of the right to bear arms more specifically.
Legislation was torn between those trying to develop laws that healed and developed the changed country and those who fought to regain control and reestablish past social norms. Black Codes in the South and North heavily restricted the right to bear arms by African Americans. In some states militias were legally recognized as white only to effectively disarm blacks while others enacted strict licensing so that even knives could not be easily acquired. In response to these laws that effectively re-enslaved blacks, Congress passed the Civil Rights Act of 1866 to ensure that citizens, "of every race and color" were allowed the same protections as white citizens. To guarantee the constitutional support for civil rights, the Fourteenth Amendment was proposed that same year and ratified in 1868. These attempts by Congress to enforce equality after the Civil War highlight the shift from the expectation that the people needed to be protected from the federal government. Instead, the state governments were now viewed as "violating fundamental rights" while the federal government was the new protector. Section 1 of the Fourteenth Amendment protected the rights of citizens under state laws:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In his historical review of the Fourteenth Amendment, constitutional attorney Stephen Halbrook argues that Representative John Bingham and the other Republicans drafting the amendment clearly expected the first eight amendments of the Bill of Rights to apply to the states. But the Second Amendment would not be clearly incorporated under the Fourteenth by the Supreme Court until McDonald v. Chicago, 130 S.Ct. 3020 (2010).
Despite the intent of lawmakers, these laws did not instill the protections expected. When the Supreme Court first addressed the Second Amendment in 1876 it reviewed the conviction of three members of The White League who attacked armed and unarmed blacks at the Colfax courthouse in Louisiana. In U.S. v. Cruikshank, 92 U.S. 542 (1876) the court decided that the Second Amendment only limited laws passed by the national government and since this was a conflict between citizens (and not the citizens against the government) they must look to their state for protection. For the next century the Fourteenth Amendment would have little impact on the interpretation of the Second Amendment and most courts maintained that the amendment continued to be a check on the national government only. States continued to pass regulations on arms much as they had in the first part of the century and continued to increase these limitations.
By the end of the century many courts also decided that the protection of arms was limited to militia appropriate weapons. In the legal commentary by Michigan Supreme Court Justice Thomas M. Cooley, he noted that although the right to arms is general it only protects arms "suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited." State Supreme Courts generally agreed that the right to arms provisions, including the U.S. Constitution, could be limited to the "arms of a militiaman or soldier."  This interpretation was favored despite the fact that at the same time the courts recognized that the militias themselves had declined in importance. This reasoning allowed the courts to build support for the "reasonable regulation" of undesirable weapons by narrowing the types of arms actually protected under state and national constitutions.
Finally, towards the end of the century, the labor movement incited unrest around the country that often included armed conflict. For example, strikes and counter riots unsettled cities like Buffalo, Indianapolis, Chicago, St. Louis, and San Francisco in 1877. Strikers were often as well-armed as the militias sent to remove them and after the Homestead Steel Strike of 1892 strikers gained a reputation for using concealed weapons. These events may have partially influenced the increase of concealed weapon laws in the northern states. Unionists were often associated with socialists who were demonized in the press as groups out to overturn the government and society. When the Supreme Court decided Presser v. Illinois, 116 U.S. 252 (1886), the New York Times clearly associated Herman Presser with a privately armed revolutionary group
of socialists who trained together, "to fight the police" because of their long-standing hate of "government and law." The court opinion itself did not use inflammatory language against armed groups but it did not recognize voluntary military companies or organizations as a right of citizenship and instead emphasized the importance of the states’ and national government’s control and regulation of militias. The states and national government could not prevent the people from keeping and bearing arms but the court reiterated the civic duty associated with the right and stressed that the general militia only existed when mustered under state or federal control. This conservative interpretation would be further developed in the 20th century to favor the state's right over the individual's right and the civic interpretation of the amendment would be increasingly replaced by the more limited collective model.
The collective interpretation of the Second Amendment developed during the second half of the 19th century and essentially replaced the civic interpretation during the 20th century. Firearms also became the focus of regulation as technology improved and their association with violent crime increased. Legislators and judges continued to redefine militia-appropriate weapons and refine "carry laws" in attempts to combat the perception of increased crime, especially in cities around the country.
Stricter regulation gained popular support after high profile cases of gun violence and coverage of gangster shoot-outs increased in the news and movies. The Sullivan Law was passed in New York in 1911 after the attempted assassination of the city's mayor, William Gaynor. This law required the licensing of concealable weapons with the discretion of issuing permits left to law enforcement. Some have interpreted this law, which was often used to restrict and charge immigrants, as a continuation of the growing mistrust and xenophobia during the first half of the century. The association of immigrant groups with gangsters and the rising violent crime under prohibition, heavily publicized by events like the St. Valentine's Day Massacre, likely encouraged gun control measures meant to restore order and the status quo. The first national gun control law, the National Firearms Act of 1934, specifically focused on the Thompson sub-machine gun or "Tommy Gun," silencers, and sawed-off shotguns popularly associated with gangsters. Rather than outlawing these weapons, the law required registration and heavily taxed possession of these firearms to discourage ownership and make it easier for law enforcement to prosecute gangsters who were not likely to register their arms lawfully. When the law was challenged in U.S. v. Miller, 307 U.S. 174 (1939), the Supreme Court restricted the protection of weapons under the Second Amendment to those used by the militia. This opinion would be used by later courts to support firearms regulation and stress the importance of the militia clause in their interpretations. When added to the interpretation that the states controlled the militias, legislators and judges were able to build support for a collective interpretation over the civic interpretation which required a widely armed populace.
The militia itself was also reorganized at this time creating the more select National Guard in 1903 which effectively became linked to the military in 1916. The favored status of the organized militia or National Guard over the reserve or general militia would further support the collective interpretation. The states retained the power to arm the general militia but generally chose not to in favor of the National Guard that received federal funding and support. States could therefore continue with stricter gun control as the arming of its populace was considered to remain under the state's "police power" and discretion. It could be argued that George Mason's fear that the militia would be disarmed through misuse by the federal government had effectively been carried out by the states themselves.
The states and the national government continued to push for more regulation after turbulent events in the 1960s including counter-cultural movements, the civil rights movement, riots, and the political assassinations of figures like John F. Kennedy, Dr. Martin Luther King Jr., and Senator Robert F. Kennedy. However, these increased restrictions encouraged a response against regulation. The NRA, which had supported the National Firearms Act of 1934, began to campaign in the individual states against an increasing number of bans on handguns and "may issue" licensing laws. Gun control was incorporated into the political party platforms and the Republican Party directly linked its position on the right to arms to the Second Amendment in 1976. Despite this push, the Supreme Court and Federal Circuit Courts remained cautious in their interpretation of the Second Amendment. Many consider this direction exemplified by the court opinion for Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) which upheld a total handgun ban as within the limits of police power and regulation.
During the 1990s some legal scholars developed the "Standard Model" interpretation of the Second Amendment that favored the individual's right to bear arms outside a responsibility to or membership in the militia. This view was popular in legal journals that promoted the individual interpretation to the legal community. This model and the scholarship supporting it is partially credited for paving the way for the historical decisions of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008) and McDonald v. Chicago, 130 S.Ct. 3020 (2010) which supported the individual interpretation of the Second Amendment and extended that protection over the states through incorporation under the Fourteenth Amendment. However, even though these opinions now direct the courts towards the individual interpretation, the justices still maintained that "reasonable regulation" can be constitutional and that this right, just as with freedom of speech or other individual rights, is not absolute.
Thus, although the Second Amendment historically has been interpreted by the Supreme Court, Federal Circuit Courts, and State Supreme Courts in several ways that include the civic, collective, and individual interpretations, the courts have predominantly favored "reasonable regulation" of the right to bear arms. As the courts continue to review the cases developing after D.C. v. Heller and McDonald v. Chicago, it will fall on them to decide how much "reasonable regulation" is allowed and determine when the right becomes infringed. Undoubtedly, the individual interpretation will limit federal and state legislation but the precedent set by the courts to date suggests that courts will continue to allow for some regulation for the maintenance of the "public peace."
Return to Legal Topics
Table of Contents
© enlighten technologies™
and Heather Pundt 2015
Published November 2013
1 Aymette v. State, 21 Tenn. (2 Hump.) 154, 159 (1840) -- see details in chart below.
2 Alexander Hamilton, "The Federalist Papers: No. 78," The Avalon Project of the Lillian Goldman Law Library, Yale Law School. (15 October 2013).
3 Historian Jack Rakove points out that the Bill of Rights in general became more legally significant, or invoked more often, after WWI. Jack Rakove, Declaring Rights: A Brief Documentary History, The Bedford Series in History and Culture (Palgrave Macmillan, 1998), 195.
4 For examples see the Subcommittee on the Constitution reports "The right to keep and bear arms" from 1982 and "Whose right to keep and bear arms?" from 1999.
5 "Attorney Referrals," NRA-ILA, (2 October 2013).
6 "Standing Committee on Gun Violence," American Bar Association, (2 October 2013).
7 In D.C. v Heller the court reiterated that judges are not legislators who determine policy from empirical fact. The court does not to evaluate the the data related to gun violence etc., which is often submitted to the courts in arguments for or against the success of the law in question. Judges can only determine if legislation is reasonable but cannot determine whether it is sound or effective. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2860, 2783 (2008) - also see summary in chart below.
8 Despite the press behind recent advocacy efforts this is not new to the process. For example, after the Kentucky Supreme Court Bliss v. Commonwealth, 2 Littell 90 Ky., 13 Am. Dec. 251 (1822) ruled the state constitution did not allow for a concealed firearms ban, the legislature responded to the court decision by amending the state constitution to add, "but the general assembly may pass laws to prevent persons from carrying concealed arms" 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 (Westport, Conn.: Praeger, 1994) 72.
9 The development of police departments was slow and public support and personal protection was not an unusual expectation for individuals. Sanford Levinson, "The Embarrassing Second Amendment," in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law, ed. Robert J Cottrol (New York: Garland Pub., 1994) 146.
10 "Militia Act of 1792," Constitution Society (6 September 2013), and Don B. Kates Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment," in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law, ed. Robert J Cottrol (New York: Garland Pub., 1994) 127-128.
11 "The Constitution of New York," 1777, The Avalon Project of the Lillian Goldman Law Library, Yale Law School, (15 August 2013).
12 "A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania," Wikisource, (15 August 2013).
13 Saul Cornell, A Well-regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford; New York: Oxford University Press, 2006) 89-92.
14 Ibid., 136 and 139-140.
15 Houston v. Moore, 18 U.S. 1 (1820).
16 St. George Tucker, Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, Vol I, Note D, Section 12, No. 8, Constitution Society, (5 October 2013).
17 William Rawle, A View of the Constitution of the United States of America, Ch. 10, Constitution Society, (5 October 2013).
18 Joseph Story, "Amendments to the Constitution," Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, Ch. 44 §1889 and §1890, Constitution Society, (5 October 2013).
19 The next popular legal commentary was by Michigan Supreme Court Justice Thomas M. Cooley who interpreted the Second Amendment as personal right that existed outside militia service in his General Principles of Constitutional Law published in 1891. More on this in the next section.
20 Historian Clayton Cramer points out that between 1791-1845 fifteen state constitutions were adopted or revised that included this individual wording while only three used the phrase "common defense." Cramer, For the Defense of Themselves and the State, 59.
21 The bowie knife was considered more lethal than pistols.Cornell, A Well-regulated Militia, 141-142 and 138.
22 See details for Bliss v. Commonwealth, 2 Littell 90 Ky., 13 Am. Dec. 251, 252 (1822) in chart below.
23 Cramer, For the Defense of Themselves and the State, 72.
24 See Aymette v. State, 21 Tenn. (2 Hump.) 154, 159 (1840) in chart below.
25 State v. Chandler, 5 La. An. 489, 490 (1850). See also Nunn v. State, 1 Ga. (1 Kel.) 243, 251(1846). Nunn is also listed in the chart below.
26 Robert J. Cottrol and Raymond T. Diamond, “The Second Amendment: Toward an Afro-Americanist Reconsideration,” in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law, ed. Robert J Cottrol (New York: Garland Pub., 1994) 404.
27 Michigan is on example that made it illegal to have guns outside the white militia in 1865. Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984) 108. Black Codes enacted in 1865-1866 in Mississippi required blacks to apply for a license to own weapons, including knives, to effectively disarm blacks. Robert J Cottrol, introduction to Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law (New York: Garland Pub., 1994) xxi.
28 "Civil Rights Act of 1866," Wikisource.org, (23 October 2013).
29 Cottrol and Diamond, “Toward an Afro-Americanist Reconsideration,” 409.
30 "Amendment Fourteen," The Charters of Freedom, National Archives, (23 October 2013).
31 Halbrook, That Every Man Be Armed, 112-114.
32 See chart below for a summary of McDonald v. Chicago, 130 S.Ct. 3020 (2010).
33 See U.S. v. Cruikshank, 92 U.S. 542 (1876) in the chart below.
34 Thomas M. Cooley, General Principles of Constitutional Law, 1891, Section 4, Constitution Society, (5 October 2013). Cooley's commentary became the standard for law that replaced Tucker, Rawle and Story. Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," 105.
35 English v. State, 14 Am. Rep. 374, 35 Tex. 473, 476 (1872). Also see Andrews v. State, 50 Tenn. 165 (1871), Constitution Society.
36 "It was usual to have annual, and in some States more frequent, days for drilling and training, and persons liable to military duty were compelled to attend under penalties; but for a third of a century or more there has been very little effort, if any, made to organize and train the entire body of the militia, and all State laws designed to effectuate that purpose have either been repealed or suffered to fall into disuse." Dunne v. People, 94 Ill. 120, 131 (1879).
37 Cramer, For the Defense of Themselves and the State, 133 and 139.
38 "The Lehr und Wehr Verein," New York Times, July 20, 1886, (20 September 2013).
39 See chart below for a summary of Presser v. Illinois, 116 U.S. 252, 265 (1886).
40 Cottrol, introduction to Gun Control, xxv-xxvi. Some of the hostile and racist perceptions of immigrants at the time are exemplified in Senator Ellison DuRant Smith speech during the debate of the Immigration Act of 1924. Ellison DuRant Smith, "'Shut the Door': A Senator Speaks for Immigration Restriction," History Matters: The U.S. Survey Course on the Web. Cramer also highlights that part of this control may have been related to the fear of socialist movements as both New Zealand and Britain enacted gun regulations at this time in direct response to the revolution in Russia. Cramer, For the Defense of Themselves and the State, 168.
41 "National Firearms Act (NFA)," ATF, United States Department of Justice, (24 October 2013).
42 See chart below for a summary of U.S. v. Miller, 307 U.S. 174 (1939).
43 The Dick Act in 1903 reformed militia into the organized and reserve militia with the organized militia becoming the National Guard. The National Defense Act of 1916 organized and trained the National Guard similar to the regular army. Cornell, A Well-regulated Militia, 196.
44 George Mason was not the only founder to express this concern as others also warned of the dangers posed by a select militia over the general militias. To see an example, see the ratification debates in Virginia on June 14, 1788, Constitution Society, (30 August 2013).
45 Cramer, For the Defense of Themselves and the State, 264 and 270.
46 Robert J. Spitzer, The Right to Bear Arms: Rights and Liberties Under the Law (ABC-CLIO, 2001) 83.
47 See summary in chart below for Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982).
48 Cornell, A Well-regulated Militia, 206.
49 See chart below for summaries of both District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008) and McDonald v. Chicago, 130 S.Ct. 3020 (2010).
50 Robert J. Spitzer, Gun Control: A Documentary and Reference Guide (Greenwood Publishing Group, 2009) 80 and “The Colfax Massacre,” WGBH American Experience, PBS.
51 "The Lehr und Wehr Verein," New York Times, July 20, 1886, (5 October 2013)
52 Cynthia Leonardatos, David B. Kopel, and Stephen P. Halbrook, "Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century--and Today," Journal of Law and Policy (2001), (15 October 2013).
53 Spitzer, Gun Control, 152.
54 "Kachalsky v. Cacace," SCOTUSblog, (24 October 2013).
Sources and Further Reading
"A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania." Wikisource. http://en.wikisource.org/
_or_State_of_Pennsylvania (15 August 2013).
"Amendment Fourteen," The Charters of Freedom, National Archives, http://www.archives.gov/exhibits/
charters/constitution_amendments_11-27.html#14 (23 October 2013).
"Civil Rights Act of 1866." Wikisource.org. http://en.wikisource.org/wiki/Civil_Rights
_1866 (23 October 2013).
"The Constitution of New York." 1777. The Avalon Project of the Lillian Goldman Law Library. Yale Law School. http://avalon.law.yale.edu/18th_century/
ny01.asp (15 August 2013).
Cooley, Thomas M. General Principles of Constitutional Law. 1891. Constitution Society. http://www.constitution.org/cmt/tmc/ (5 October 2013).
Cornell, Saul. A Well-regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Oxford; New York: Oxford University Press, 2006.
Cottrol, Robert J. Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Controversies in Constitutional Law. New York: Garland Pub., 1994.
Cramer, Clayton E. For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms. Westport, Conn.: Praeger, 1994.
Halbrook, Stephen P. That Every Man Be Armed: The Evolution of a Constitutional Right. Albuquerque: University of New Mexico Press, 1984.
Hamilton, Alexander. "The Federalist Papers: No. 78." The Avalon Project of the Lillian Goldman Law Library. Yale Law. School. http://avalon.law.yale.edu/
18th_century/fed78.asp (15 October 2013).
"The Lehr und Wehr Verein." New York Times. July 20, 1886. http://query.nytimes.com/mem/archive-free/pdf?res=9803E3D91E3EEF33A2
5753C2A9619C94679FD7CF (20 September 2013).
Leonardatos, Cynthia, David B. Kopel, and Stephen P. Halbrook. "Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century--and Today." Journal of Law and Policy. (2001). http://www.stephenhalbrook.com/law_
_articles/miller_v_texas.htm (15 October 2013).
"Militia Act of 1792." Constitution Society. http://www.constitution.org/mil/mil_act
_1792.htm (6 September 2013).
"National Firearms Act (NFA)." ATF. United States Department of Justice. https://www.atf.gov/rules-and-regulations/national-firearms-act (24 October 2013).
Rakove, Jack Rakove. Declaring Rights: A Brief Documentary History. The Bedford Series in History and Culture. Boston: Palgrave Macmillan, 1998.
Rawle, William. A View of the Constitution of the United States of America. Constitution Society. http://www.constitution.org/wr/rawle-00.htm (5 October 2013).
Spitzer, Robert J. Gun Control: A Documentary and Reference Guide. Greenwood Publishing Group, 2009.
-----. The Right to Bear Arms: Rights and Liberties Under the Law. ABC-CLIO, 2001.
Story, Joseph. Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Constitution Society. http://www.constitution.org
/js/js_005.htm (5 October 2013).
Tucker, St. George. Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. Constitution Society. http://www.constitution.org/tb/tb-0000.htm (5 October 2013).
United States. Congress. Senate. Committee on the Judiciary. Subcommittee on the Constitution. The Right to Keep And Bear Arms: Report of the Subcommittee On the Constitution of the Committee On the Judiciary, United States Senate, Ninety-seventh Congress, Second Session. Washington: U.S.G.P.O. 1982. HathiTrust Digital Library. http://babel.hathitrust.org/cgi/pt?id=pur1.3275
view=1up;seq=1 (3 October 2013).
United States. Congress. Senate. Committee on the Judiciary. Subcommittee on the Constitution, Federalism, and Property Rights. Whose Right to Keep And Bear Arms? the Second Amendment As a Source of Individual Rights: Hearing Before the Subcommittee On the Constitution, Federalism, And Property Rights of the Committee On the Judiciary, United States Senate, One Hundred Fifth Congress, Second Session. September 23, 1998. Washington: U.S. G.P.O. 1999. HathiTrust Digital Library. http://babel.hathitrust.
seq=1 (3 October 2013).
Return to first article in series: Interpreting the Second Amendment, An Introduction
Return to Legal Topics
Table of Contents