 
[Compiled by Matt Giwer
Matt.Giwer@f20.n3603.z1.fidonet.org

The contributions of many people are involved in this compilation
whose names I have not kept.  If anyone would like to come
forward and claim credit I will be happy to give credit where it
is due.  I did not expect to have it for more than personal use
when I was collecting the pieces.]
 
1.   What is the Constitutional basis for gun ownership?
 
     The Constitutional issues of ownership are contained
explicitely in these sections.
 
     The basic Constitution gives Congress the power to regulate
the Militia.
 
     The Constitution of the United States of America
 
Article I.
 
Sect. 8. The Congress shall have power
 
To raise and support armies, but no appropriation of money to
that use shall be for a longer term than two years;
 
To provide and maintain a navy;
 
To make rules for the government and regulation of the land and
naval forces;
 
To provide for calling forth the militia to execute the laws of
the union, suppress insurrections and repel invasions.;
 
To provide for organizing, arming, and disciplining, the militia,
and for governing such part of them as may be employed in the
service of the United States, reserving to the States
respectively, the appointment of the officers, and the authority
of training the militia according to the discipline prescribed by
Congress;
 
=====
 
     The 2nd limits the basic power of Congress in regards to the
militia in that it prohibits the power of Congress in regard to
the militia from disarming the militia.  (Noting at the time the
militia was considered to be every able bodied male, etc.)
 
AMENDMENTS
 
2nd 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 14th prohibits the denial of an Federal right by any
state. (The Doctrine of Incorporation holds the 2nd has not been
incorporated as there has not been any Supreme Court decision
related to a specific state law.)
 
14th Amendment
 
Sect. 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.  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 any person within its jurisdiction
the equal protection of the laws.
 
 
2.   What is the early legislation regarding the militia?
 
    A. The Militia Act (1792):  Excerpt
 
       "[E]ACH AND EVERY FREE ABLE-BODIED WHITE MALE CITIZEN OF THE
       RESPECTIVE STATES, RESIDENT THEREIN, who is or shall be of the
       age of eighteen years, and under the age of forty-five years
       (except as is herein after excepted) SHALL SEVERALLY AND
       RESPECTIVELY BE ENROLLED IN THE MILITIA by the captain or
       commanding officer of the company, within whose bounds such
       citizen shall reside, and that within twelve months after the
       passing of this act.  And it shall at all times hereafter be
       the duty of every such captain or commanding officer of a
       company to enroll EVERY SUCH CITIZEN as aforesaid. . .
       [emphasis added]
 
       "That EVERY CITIZEN so enrolled and notified, shall within six
       month thereafter, PROVIDE HIMSELF with a good musket or
       firelock, a sufficient bayonet and belt, two spare flints. .
       .."  [An Act. . . Establishing an Uniform Militia through the
       United States; May 8, 1792 -- emphasis added]
 
    B. The National Guard Act (1903):  Excerpt
 
       The National Guard was establish in 1903 when Congress created
       the NG under its power to "raise and support armies". (see H.R.
       Report No. 141, 73d Cong., 1st Sess. at 2-5, 1933) It was done
       in order to create reserve MILITARY units.  The NG was
       specifically intended to avoid status as the constitutional
       militia, and this distinction is recognized by 10 U.S.C. 311.
       It was not, nor was it intended to be the Militia as was
       recognize by the USSC in Presser and reaffirmed again in US v.
       Miller.
 
        "[T]he militia shall consist of every able-bodied male citizen
         of the respective States, Territories, and the District of
         Columbia, and every able-bodied male of foreign birth who has
         declared his intention to become a citizen, who is more than
         eighteen and less than forty-five years of age, and shall be
         divided into two classes -- the organized militia, to be know
         as the National Guard of the State, Territory, or District of
         Columbia, or by such other designations as may be given them
         by the laws of the respective States or Territories, and the
         remainder to be know as the Reserve Militia." [from "An Act
         To promote the efficiency of the militia, and for other
         purposes", January 21, 1903]
 
    C. 10 U.S.C. 311 (from my xerox):  Excerpt
 
         "311.  Militia:  Composition and classes
 
         (a) The militia of the United States consists of all
             able-bodied males at least 17 years of age and, except as
             provided in section 313 of title 32, under 45 years of
             age who are, or who have made a declaration of intention
             to become, citizens of the United States and of female
             citizens of the United States who are commissioned
             officers of the National Guard.
 
         (b) The classes of the militia are --
 
              (1) the organized militia, which consists of the
                  National Guard and the Naval Militia; and
 
              (2) the unorganized militia, which consists of the
                  members of the militia who are not members of the
                  National Guard or the Naval Militia."
 
3.   What are the relevant Supreme Court decisions?
 
      U.S. v. Cruikshank, 92 U.S. 542 (1875)
 
     "This [the right to arms] is not a right GRANTED BY the
Constitution. Neither is it in any manner dependent upon that
instrument for its existence. The 2nd Amendment declares that it
shall not be infringed; but this, as has been seen, means no more
than that it shall not be infringed by Congress."
 
   Presser v State of Illinois [116 U.S. 252 (1886)]
 
   "It is undoubtedly true that all citizens capable of bearing
arms constituted the reserved military force or reserve militia
of the United States as well as of the States, and in view of
this prerogative of the general government, as well as of its
general powers, the States cannot, even laying the constitutional
provision in question out of  view, prohibit the people from
keeping and bearing arms, so as to deprive the United States of
their rightful resource for maintaining the public security and
disable the people from performing their duty to the General
Government."  [id at 265]
 
                         UNITED STATES v. MILLER ET AL.
 
                                   No. 696
 
                      SUPREME COURT OF THE UNITED STATES
 
           307 U.S. 174;  59 S. Ct. 816;  83 L.Ed. 1206; 39-1 U.S.
 
    Tax Cas. (CCH) P9513; 22 A.F.T.R. (P-H)
 
                    331; 1939-1 C.B. 373; 1939 P.H. P5421
 
                          March 30, 1939, Argued
 
                            May 15, 1939, Decided
 
 PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DISTRICT OF ARKANSAS.
 
  APPEAL under the Criminal Appeals Act from a judgment
sustaining a demurrer to an indictment for violation of the
National Firearms Act. DISPOSITION: 26 F.Supp. 1002, reversed.
 
SYLLABUS:   The National Firearms Act, as applied to one indicted
for transporting in interstate commerce a 12-gauge shotgun with a
barrel less than 18 inches long, without having registered it and
without having in his possession a stamp-affixed written order
for it, as required by the Act, held:
 
  1. Not unconstitutional as an invasion of the reserved powers
of the States. Citing Sonzinsky v. United States, 300 U.S. 506,
and Narcotic Act cases.  P. 177.
 
  2. Not violative of the Second Amendment of the Federal
Constitution. P. 178.
 
  The Court can not take judicial notice that a shotgun having a
barrel less than 18 inches long has today any reasonable relation
to the preservation or efficiency of a well regulated militia;
and therefore can not say that the Second Amendment guarantees to
the citizen the right to keep and bear such a weapon.
 
COUNSEL: Mr. Gordon Dean argued the cause, and Solicitor General
Jackson, Assistant Attorney General McMahon, and Messrs. William
W. Barron, Fred E. Strine, George F. Kneip, W. Marvin Smith, and
Clinton R. Barry were on a brief, for the United States.
 
  No appearance for appellees.
 
JUDGES: Hughes, McReynolds, Butler, Stone, Roberts, Black, Reed,
Frankfurter; Douglas took no part in the consideration or
decision of this case.
 
   MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
 
  An indictment in the District Court Western District Arkansas,
charged that Jack Miller and Frank Layton "did unlawfully,
knowingly, wilfully, and feloniously transport in interstate
commerce from the town of Claremore in the State of Oklahoma to
the town of Siloam Springs in the State of Arkansas a certain
firearm, to-wit, a double barrel 12-gauge Stevens shotgun having
a barrel less than 18 inches in length, bearing identification
number 76230, said defendants, at the time of so transporting
said firearm in interstate commerce as aforesaid, not having
registered said firearm as required by Section 1132d of Title 26,
United States Code (Act of June 26, 1934, c. 737, Sec. 4 [@ 5],
48 Stat. 1237), and not having in their possession a
stamp-affixed written order for   [***3] said firearm as provided
by Section 1132c, Title 26, United States Code (June 26, 1934, c.
737, Sec. 4, 48 Stat. 1237) and the regulations issued under
authority of the said Act of Congress known as the 'National
Firearms Act' approved June 26, 1934, contrary to the form of the
statute in such case made and provided, and against the peace and
dignity of the United States."
 
[text of Act in footnote omitted]
 
  A duly interposed demurrer alleged: The National Firearms Act
is not a revenue measure but an attempt to usurp police power
reserved  to the States, and is therefore unconstitutional.
Also, it offends the inhibition of the Second Amendment to the
Constitution -- "A well regulated Militia, being necessary to the
security of a free State, the right of people to keep and bear
Arms, shall not be infringed."
 
  The District Court held that section eleven of the Act violates
the Second Amendment. It accordingly sustained the demurrer and
quashed the indictment.
 
  The cause is here by direct appeal.
 
   Considering Sonzinsky v. United States (1937), 300 U.S. 506,
513, and what was ruled in sundry causes arising   [*178]   under
the Harrison Narcotic Act n2 -- United States v. Jin Fuey Moy
(1916), 241 U.S. 394; United States v. Doremus (1919), 249 U.S.
86, 94; Linder v. United States (1925), 268 U.S. 5; Alston v.
United States (1927), 274 U.S. 289; Nigro v. United States
(1928), 276 U.S. 332 -- the objection that the Act usurps police
power reserved to the States is plainly untenable.
 
  In the absence of any evidence tending to show that possession
or use of a "shotgun having a barrel of less than eighteen inches
in length" at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and
bear such an instrument.  Certainly it is not within judicial
notice that this weapon is any part of the ordinary military
equipment or that its use could contribute to the common defense.
Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
 
  The Constitution as originally adopted granted to the Congress
power -"To provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions; To
provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority
of training the Militia according to the discipline prescribed by
Congress." With obvious purpose to assure the continuation and
render possible the effectiveness of such forces the declaration
and guarantee of the Second Amendment were made.  It must be
interpreted and applied with that end in view.
 
  The Militia which the States were expected to maintain and
train is set in contrast with Troops which they were forbidden to
keep without the consent of Congress.  The sentiment of the time
strongly disfavored standing armies; the common view was that
adequate defense of country and laws could be secured through the
Militia -- civilians primarily, soldiers on occasion.
 
  The signification attributed to the term Militia appears from
the debates in the Convention, the history and legislation of
Colonies and States, and the writings of approved commentators.
These show plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense.
"A body of citizens enrolled for military discipline." And
further, that ordinarily when called for service these men were
expected to appear bearing arms supplied by themselves and of the
kind in common use at the time.
 
  Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out
"that king Alfred first settled a national militia in this
kingdom," and traces the subsequent development and use of such
forces.
 
  Adam Smith's Wealth of Nations, Book V, Ch. 1, contains an
extended account of the Militia.  It is there said: "Men of
republican principles have been jealous of a standing army as
dangerous to liberty." "In a militia, the character of the
labourer, artificer, or tradesman, predominates over that of the
soldier: in a standing army, that of the soldier predominates
over every other character; and in this distinction seems to
consist the essential difference between those two different
species of military force."
 
  "The American Colonies In The 17th Century," Osgood, Vol. 1,
ch. XIII, affirms in reference to the early system of defense in
New England -  "In all the colonies, as in England, the militia
system was based on the principle of the assize of arms.  This
implied the general obligation of all adult male inhabitants to
possess arms, and, with certain exceptions, to cooperate in the
work of defence." "The possession of arms also implied the
possession of ammunition, and the authorities paid quite as much
attention to the latter as to the former." "A year later [1632]
it was ordered that any single man who had not furnished himself
with arms might be put out to service, and this became a
permanent part of the legislation of the colony [Massachusetts]."
 
 
 
4.  What was the original intent of the Second Amendment?
 
     It is not questionable the original intent was that the
people had specifically prohibited the Federal Government from
prohibiting citizen ownership.
 
  "False is the idea of utility...that would take fire from men
because it burns, and water because one may drown in it; that has
no remedy for evils, except destruction (of liberty).  The laws
that forbid the carrying of arms are laws of such nature.  They
disarm only those who are neither inclined nor determined to
commit crimes...such laws serve rather to encourage than to
prevent homocides, for an unarmed man may be attacked with
greater confidence than an armed man."
 
  Thomas Jefferson 'Commonplace Book'   1775
 
 
        "As civil rulers, not having their duty to the people
duly before them, may attempt to tyrannize, and as the military
forces which must be occasionally raised to defend our country,
might pervert their power to the injury of their fellow citizens,
the people are confirmed by the articlein their right to keep and
bear arms."
 
     - Tench Coxe in  "REMARKS ON THE FIRST PART OF THE
AMENDMENTS TO THE FEDERAL CONSTITUTION."  Under the pseudonym  "A
Pennsylvanian" in the Philidelphia Federal Gazette, June 18, 1789
at 2 col 1.
 
 
        "On every question of construction (of the Constitution)
let us carry ourselves back to the time when the Constitution was
adopted, recollect the spirit manifested in the debates, and
instead of trying what meaning may be squeezed out of the text,
or invented against it, conform to the probable one in which it
was passed."
 
     -  Thomas Jefferson, letter to William Johnson, June 12,
1823, "THE COMPLETE JEFFERSON," p322
 
 
        "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 enforceunjust laws by the sword;
because the whole body of the people are armed, and constitute a
force superior to any bands of regular troops..."
 
     -  Noah Webster, "An Examination into the Leading Principles
of the Federal Constitution" (1787) in Pamphlets on the
Constitution fo the United States (P. Ford, 1888)
 
 
        "The right of the people to keep and bear arms has been
recognized by the General Government; but the best security of
that right after all is, the military spirit, that taste for
martial exercises, which has always distinguished the free
citizens of these States...Such men form the best barrier to the
liberties of America."
 
     -  Gazette of the United States, October 14, 1789
 
 
        "A Militia, when properly formed, are in fact the people
themselves...and include all men capable of bearing arms."
 
     -  Richard Henry Lee,  Additional Letters from the Federal
Farmer, (1788) at 169
 
 
     "When firearms go, all goes - we need them every hour" -
President George Washington
 
     "No free man shall ever be debarred the use of arms." -
Thomas Jefferson
 
     "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." - Richard Henry Lee
 
     "I ask, sir, what is the militia?  It is the whole people,
except for a few public officials." - George Mason
 
     "I believe there are more instances of the abridgement of
the freedom of the people by gradual and silent encroachments of
those in power than by violent and sudden usurptions" -- James
Madison
 
     "They that can give up essential liberty to obtain a little
temporary safety deserve neither liberty nor safety" - Benjamin
Franklin
 
     "God grants liberty only to those who love it, and are
always ready to guard and defend it." - Daniel Webster
 
     "Congress may give us a select militia which will, in fact,
be a standing army -- or congress, afraid of a general militia,
may say there shall be no militia at all.  when a select militia
is formed; the people in general may be disarmed." - John Smilie
 
     "If the laws of the union were oppressive, they could not
carry them into effect, if the people were possessed of the
proper means of defense." - William Lenoir
 
     "The strongest reason for people to retain the right to keep
and bear arms is, as a last resort, to protect themselves against
tyranny in government." - Thomas Jefferson
 
     "Whenever people...entrust the defense of their country to a
regular, standing army, composed of mercenaries, the power of
that country will remain under the direction of the most wealthy
citizens..." - "A Framer" in the independent gazetteer, 1791
 
     "Americans have the right and advantage of being armed --
unlike the citizens of other countries whose governments are
afraid to trust the people with arms." - James Madison
 
     "Every corner of this land knows firearms, and more than 99
99/100 percent of them by their silence indicate they are in safe
and sane hands." - George Washington
 
     "Firearms stand next in importance to the constitution
itself. The very atmosphere of firearms anywhere and everywhere
restrains evil influence - they deserve a place of honor with all
that's good." - George Washington
 
    "We, the people are the rightful masters of both congress and
the courts - not to overthrow the constitution, but to overthrow
men who pervert the constitution." - A. Lincoln
 
    "The great object is that every man be armed.... everyone who
is able may have a gun." - Patrick Henry
 
    "Guard with jealous attention the public liberty.  suspect
everyone who approaches that jewel.  Unfortunately, nothing will
preserve it but downright force.  Whenever you give up that
force, you are ruined." - Patrick Henry
 
    "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." - Noah Webster
 
    "The constitution shall never be construed....to prevent the
people of the united states who are peaceable citizens from
keeping their own arms." - Alexander Hamilton
 
    "Our legislators are not sufficiently appraised of the
rightful limits of their power; that their true office is to
declare and enforce our natural rights and duties, and to take
none of them from us." -- Thomas Jefferson
 
5.  Opinions are fine but where is proof?
 
Documents on the First Congress Debate on Arms and Militia.
 
Extracted from 'The Origins of the American Constitution, A
Documentary History
 
Edited by Michael Kammen, Penquin Books, 1986; and 'Creating the
Bill of Rights
 
The Documentary Record from the First Federal Congress,
 
Edited by Helen E. Veit, et al, The Johns Hopkins University
Press, 1991.
 
          (Edacted by Jim Knoppow)
 
From the Madison Resolution, June 8, 1789.
 
 Resolved, that the following amendments ought to be proposed by
Congress to the legislatures of the states, to become, if
ratified by three fourths thereof, part of the constitution of
the United States... 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 person
religiously scrupulous of bearing arms, shall be compelled to
render military service in person...
 
-----------------------------------------------------------------------------
AMENDMENTS PROPOSED BY STATES
 
Massachusetts Convention-- Did not propose a keeping and bearing
amendment, nor a militia nor a standing army amendment.
 
South Carolina-- Proposed no keeping and bearing, or militia or
standing army amendment.
 
New Hampshire-- TENTH, That no standing Army shall be Kept up in
time of Peace unless with the consent of three fourths of the
Members of each branch of Congress, nor shall Soldiers in Time of
Peace be Quartered upon private Houses without the consent of the
Owners... TWELFTH Congress shall never disarm any Citizen unless
such as are or have been in Actual Rebellion.
 
Virginia-- SEVENTEENTH, 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 of 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. EIGHTEENTH,
That no Soldier in time of peace ought to be quartered in any
house without the consent of the owner, and in time of war in
such manner only as the laws direct. NINETEENTH, That any person
religiously scrupulous of bearing arms ought to be exempted upon
payment of an equivalent to employ another to bear arms in his
stead... (Amendments proposed to the body of the
Constitution).... NINTH, that no standing army or regular troops
shall be raised or kept up in time of peace, without the consent
of two thirds of the members present in both houses. TENTH, That
no soldier shall be inlisted for any longer term than four years,
except in time of war, and then for no longer term than the
continuance of the war. ELEVENTH, That each State respectively
shall have the power to provide for organizing, arming and
disciplining it's own Militia, whensoever Congress shall omit or
neglect to provide for the same. That the Militia shall not be
subject to Martial Law, except when in actual service in time of
war, invasion, or rebellion; and when not in the actual service
of the United States, shall be subject only to such fines,
penalties and punishments as shall be directed or inflicted bfy
the laws of its own State.
 
New York-- That the People have a right to keep and bear Arms;
that a well regulated Militia, including the body of the People
capable of bearing Arms, is the proper, natural and safe defence
of a free State; that the Militia should not be subject to
Martial Law, except in time of War Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty,
and ought not to be kept up, except in Cases of necessity; and
that at all times, the Military should be under strict
Subordination to the Civil Power. That in time of Peace no
Soldier ought to be quartered in any House without the consent of
the Owner, and in time of War only by the civil Magistrate in
such manner as the Laws may direct...that the Militia of any
State shall not be compelled to serve without the limits of the
State for a longer term than six weeks, without the Consent of
the Legislature thereof.
 
-------------------------------------------------------------------------
 
HOUSE COMMITTEE REPORT, July 28, 1789.
 
...[6] "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."#
 
this point failed for want of a second.
 
# On August 17, Jackson made a motion in the Committe of the
Whole House to insert "upon paying an equivalent to be
established by law," at this point. On the suggestion of Smith
(S.C.), Jackson proposed to change this phrase to, "No one,
religiously scrupulous of bearing arms, shall be compelled to
render military service in person, upon paying an equivalent."
This was apparently superseeded by Benson's motion to strike out
"but no person" through "bear arms," which the COWH disagreed to,
24-22. On the same day, a motion by Burke to insert the following
at this point was disagreed to, by a majority of 13: "A standing
army of regular troops in time of peace, is dangerous to public
liberty, and such shall not be raised or kept up in time of peace
but from necessity, and for the security of the people, nor then
without the consent of two-thirds of the members present of both
houses, and in all cases the military shall be subordinate to the
civil authority." The House, on August 20, agreed to a motion to
insert "in person" at this point.
 
-------------------------------------------------------------------------
 
HOUSE RESOLUTION AND ARTICLES OF AMENDMENT; August 24, 1789.
 
ARTICLE THE FIFTH. 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 one religiously scrupulous of bearing arms shall be compelled
to render military service in person.*
 
toa motion to insert the following at this point: that standing
armies, in time of peace, being dangerous to Liberty, should be
avoided as far as the circumstances and protection of the
community admit; and that in all cases the military should be
under strict subordination to, and governed by the civil Power.
That no standing army or regular troops shall be raised in time
of peace, without the consent of two thirds of the Members
present in both Houses, and that no soldier shall be inlisted for
any longer term than the continuance of the war.
 
 On September 4, the Senate agreed to amend Article 5 to read as
follows: A well regulated militia, being the best security of a
free state, the right of the people to keep and bear arms, shall
not be infringed.
 
On September 9, the Senate replaced "the best" with "necessary to
the." On the same day, the Senate disagreed toa motion to insert
"for the common defence" after "bear arms." This article and the
following ones were then renumbered as articles 4 through 8.
 
ARTICLE THE SIXTH. No soldier shall, in time of peace, be
quartered in any house without the consent of the owner, nor in
time of war, but in a manner prescribed by law.
 
----------------------------------------------------------------------------
 
ADDITIONAL ARTICLES OF AMENDMENT; September 8, 1789
 
 That no standing army or regular troops shall be raised or kept
up in time of peace, without the consent of two thirds of the
members present in both houses. That no soldier shall be enlisted
for any longer term than four years, except in time of war, and
then for no longer term than the continuance of the war. That
each State respectively shall have the power to provide for
organizing, arming, and disciplining its own militia, whensoever
Congress shall omit or neglect to provide for the same. That the
militia shall not be subject to martial law, except when in
actual service in time or war, invasion or rebellion; and when
not in the actual service of the United States, shall be subject
only tosuch fines, penalties, and punishments as shall be
directed or inflicted by the laws of its own State.
 
---------------------------------------------------------------------------
 
SENATE AMENDMENTS, September 9, 1789
 
[8] To erase the word "fifth"--& insert--fourth--& to erase from
the fifth article the words, "composed of the body of the
people--the word "best"--& the words "but no one religiously
scrupulous of bearing arms shall be compelled torender military
service in person"--& insert after the word "being" in the first
line--necessary to.
 
--------------------------------------------------------------------------
 
ARTICLES OF AMENDMENT, as Agreed to by the Senate, September 14,
1789
 
ARTICLE THE FOURTH. 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.
 
-------------------------------------------------------------------------
 
DEBATE ON THE MILITIA AND RIGHT TO KEEP AND BEAR IN THE HOUSE
(Senate debates were secret).
 
The Congressional Register, 17 August 1789
 
The house went into a committee of the whole, on the subject of
amendments. The 3d clause of the 4th proposition in the report
was taken into consideration, being as follows; "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.
 
Mr. Gerry. This declaration of rights, I take it, is intended to
secure the people against the mal-administration 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, sir, that this
clause would give an opportunity to the people in power to
destroy the constition itself. They can declare who are those
religiously scrupulous, and prevent them from bearing arms. What,
sir, is the use of a militia? It is to prevent the establishment
of a standing army, the  bane of liberty. Now it must be evident,
that under this provision, together with their other powers,
congress could take such measures ith respect to a militia, as
make a standing army necessary. Whenever government mean to
invace the rights and liberties of the people, they always
attempt to destroy the militia, in order to raise an army upon
their ruins. This was actually done by Great Britain at the
commencement of the late revolution. They used every means in
their power to prevent the establishement of an effective militia
to the eastward. The assembly of Massachusetts, seeing the rapid
progress that administra- tion were making, to divest them of
their inherent privileges, endeavored to counteract them by the
organization of the militia, but they were always defeated by the
influence of the crown.
 
Mr. Seney-- wished to know what question there was before the
committee, in order to ascertain the point upon which the
gentleman was speaking?
 
Mr. Gerry--replied, that he meant to make a motion, as he
disapproved of the words as they stood. He then proceeded, No
attempts that they made, were successful, until they engaged in
the struggle which emancipated them at once from their thralldom.
Now, if we give a discretionary power to exclude those from
militia duty who have religious scruples, we may as well make no
provision on this head; for this reason he wished the words to be
altered so as to be confined to persons belonging to a religious
sect, scrupulous of bearing arms.
 
Mr. Jackson--Did not expect that all the people of the United
States would turn Quakers or Moravians, consequently one part
would have to defend the other, in case of invasion; now this, in
his opinion, was unjust, unless the consitution secured an
equivalent, for this reason he moved to amend the clause, by
inserting at the end of it "upon paying an equivalent to be
established by law."
 
Mr. Smith, (of S.C.)--Enquired what were the words used by the
conventions respecting this amendment; if the gentleman would
conform to what was proposed by Virginia and Carolina, he would
second him: He thought they were to be excused provided they
found a substitute.
 
Mr. Jackson--Was willing to accommodate; he thought the
expression was, "No one, religiously scrupulous of bearing arms,
shall be compelled to render military service in person, upon
paying an equivalent."
 
Mr. Sherman--Conceived it difficult to modify the clause and make
it better. It is well-known that those ho are religiously
scrupulous of bearing arms, are equally scrupulous of getting
substitutes or paying an equivalent; many of them would rather
die than do either one or the other--but he did not see an
absolute necessity for a clause of this kind. We do not live
under an arbitrary government, said he, and the states
respectively will have the government of the militia, unless when
called into actual service; beside, it would not dotoalter it so
as to exclude the whole of any sect, because there are men
amongst the quakers who will turn out, notwithstanding the
religious principles of this society, and defend the cause of
their country. Certainly it will be improper to prevent the
exercise of such favorable dispositions, at least while it is the
practice of nations to determine their contests by the slaughter
of their citizens and subjects.
 
Mr. Vining--Hoped the clause would be suffered to remain as it
stood, because he saw no use in it if it as amended so as to
compel a man to find a substitute, which, with respect to the
government, was the same as if the person himself turned out to
fight.
 
Mr. Stone--Enquired what the words "Religiously scrupulous" had
reference to, was it of bearing arms? If it was, it ought so to
be expressed.
 
Mr. Benson--Moved to have the words "But no person religiously
scrupulous shall be compelled to bear arms" struck out. He would
always leave it to the benevolence of the legislature--for,
modify it, said he, as you please, it will be impossible to
express it in such a manner as to clear it from ambiguity. No man
can claim this indulgence of right. It may be a religious
persuasion, but it is no natural right, and therefore ought to be
left to the discretion of the government. If this stands part of
the constitution, it will be a question before the judiciary, on
every regulation you make with respect to the organization of the
militia, whether it comports with this declaration or not? It is
extremely injudicious to intermix matters of doubt with
fundamentals. I have no reason to believe but the legislature
will always possess humanity enough to indulge this class of
citizens in a matter they are so desirous of, but they ought to
be left to their discretion.
 
 The motion for striking out the whole clause being seconded, was
put, and decided in the negative, 22 members voting for it, and
24 against it.
 
Mr. Gerry--Objected to the first part of the clause, on account
of the uncertainty with which it is expressed: a well-regulated
militia being the best security of a free state, admitted an idea
that a standing army was a secondary one. It ought to read "a
well regulated militia, trained to arms," in which case it would
become the duty of the government to provide this security, and
furnish a greater certainty of its being done.
 
Mr. Gerry's motion not being seconded, the question was put on
the clause as reported, which being adopted.
 
Mr. Burke--Proposed to add to the clause just agreed to, an
amendment to the following effect: "A standing army of regular
troops in time of peace, is dangerous to public liberty, and such
shall not be raised or kept up in tim of peace but from
necessity, and for the security of the people, nor then without
the consent of two-thirds of the members present of both houses,
and in all cases the military shall be subordinate to the civil
authority." This being seconded.
 
Mr. Vining--Asked whether this was to be considered as an
addition to the last clause, or an amendment by itself? If the
former, he would remind the gentleman the clause was decided; if
the latter, it was improper to introduce new matter, as the house
had referred the report specially to the committee of the whole.
 
Mr. Burke--Feared that what with being trammelled in rules, and
the apparent disposition of the committee, he should not be able
to get them to consider any amendment; he submitted to such
proceeding because he could not help himself.
 
Mr. Hartley--thought the amendment in order, and was ready to
give his opinion of it. He hoped the people of America would
always be satisfied with having a majority to govern. He never
wished to see two-thirds or three-fourths required, because it
might put it in the power of a small minority to govern the whole
union.
 
The question on mr. Burke's motion was put, and lost by a
majority of 13.
 
------------------------------------------------------------------------------
 
AUGUST 20, 1789
 
 Mr. SCOTT objected tothe clause in the sixth amendment, "No
person religiously scrupulous shall be compelled to bear arms."
He said, if this becomes part of the constitution, we can neither
call upon such persons for services nor an equivalent; it is
attended with still further difficulties, for you can never
depend upon your militia. This will lead to the violation of
another article in the constitution, which secures to the people
the right of keeping arms, as in this case you must have recourse
to a standing army. I conceive it is a matter of legislative
right altogether. I know there are many sects religiously
scrupulous in this respect: I am not for abridging them of any
indulgence by law; my design is to guard against those who are of
no religion. It is said that religion is on the decline; if this
is the case, it is an argument in my favour; for when the time
comes that there is no religion, persons will more generally have
recourse to these pretexts to get excused.
 
Mr. BOUDINOT said that the provision in the clause or something
like it appeared to be necessary. What dependence can be placed
in men who are conscientious in this respect? Or what justice can
there be in compelling them to bear arms, when, if they are
honest men, they would rather die than use them. He then adverted
to several instances of oppression in the case which occurred
during the [revolutionary] war. In forming a militia we ought
tocalculate for an effectual defence, and not compel characters
of this description to bear arms. I wish that in establishing
this government we may be careful to let every person know that
we will not interfere with any person's particular religious
profession. If we strike out this clause, we shall lead such
persons to conclude that we mean to compel them to bear arms.
 
Mr. VINING and Mr. JACKSON spake upon the question. The words 'in
person' were added after the word 'arms', and the amendment was
adopted.
 
LETTERS AND DOCUMENTS REFERING TO KEEPING AND BEARING
 
Fisher Ames to George R. Minor. 12 June, 1789
 
The civil departments will employ us next, and the judiciary the
Senate. They will finish their stint, as the boys say, before the
House has done. Their number is less, and they have matured the
business in committee. Yet Mr. Madison has inserted, in his
amendments, the increase of representatives, each State having
two at least. The rights of conscience, of bearing arms, of
changing the government, are declared to be inherent in the
people. Freedom of the press too. There is a prodigious great
dose fro a medicine. But it will stimulate the stomach as little
as hasty- pudding. It is rather food than physic. An immense mass
of sweet and other herbs and roots for a diet drink.
 
Samuel Nasson to George Thatcher. 9 july 1787
 
I find that Ammendments are once again on the Carpet. I hope that
such may take place as will be for the Best Interest of the
whole. A Bill of rights well secured that we the people may know
how far we may Proceade in Every Department then their will be no
Dispute Between people and rulers in that may be secured the
right to keep and bear arms for Common and Extraordinary
Occations such as to secure ourselves against the wild Beast and
also to amuse us by fowling and for our Defence against a Common
Enemy   you know to learn the Use of arms is all that can Save us
from a forighn foe that may attempt to subdue us for if we keep
up the Use of arms and become well acquainted with them we Shall
allway be able to look them in the face that arise up against us
for it is impossible to Support a Standing armey large Enough
toGuard our Lengthy Sea Coast and now Spare me on the subject of
Standing armeys in a time of Peace    they allway was first or
last the downfall of all free Governments it was by their help
Caesar made proud Rome Own a Tyrant and a Traytor for a Master.
 
   Only think how fatal they ware to the peace of this Countery
in 1770 what Confeusion they Brought on the fatal 5 of March [the
Boston Massacre]   I think the remembrance of that Night is
enough to make us Carefull how we Introduce them in a free
republican Government--I therefore hope they will be Discouraged
for I think the man that Enters as a Soldier in a time of peace
only for a living is only a fit tool toinslave his fellows
 
  For this purpose was a Standing Army first introduced in the
World anoather that I hope will be Established in the bill is
tryals by Juryes in all Causes Excepting where the parties agree
to be without I never wish to be in the power of any Sett of Men
let them be Never so good but hope to be left in the hands of my
Countery and if any Enemey means to bribe he must have money
anough to settle it with the Country.
 
----------------------------------------------------------------------------
 
ROGER SHERMAN'S PROPOSED COMMITTEE REPORT. 21-28 July 1789
 
...5 The Militia shall be under the government of the laws of the
respective States, when not in the actual Service of the united
States, but Such rules as may be prescribed by Congress for their
uniform organisation & discipline shall be observed in officering
and training them. but military Service Shall not be required of
persons religiously Scrupulous of bearing arms.
 
6 No Soldier Shall be quartered in any private house, in time of
Peace, nor at any time, but by authority of law.
 
(11 articles were proposed in this committee report, with the
advisory that they be sent to the legislatures of the several
states to be adopted by them as amendments of the Constitution of
the United States. The 'natural rights' mentioned in this report
include; "rights of conscience in matters of religion; of
acquiring property, and of pursuing happiness & safety; of
Speaking, writing and publishing their Sentiments which decency
and freedom; of peaceably Assembling to consult their common
good, and of applying to the Government by petition or
remonstrance for redress of grievances. Of these rights therefore
they Shall not be deprived by the government of the united
States." No mention of keeping and bearing is made in the
document. According to the footnote in 'Creating the Bill of
Rights', "This document is apparently Sherman's proposal to the
House select committee, showing how Madison's amendments could be
revised and placed at the end of the Constitution.")
 
------------------------------------------------------------------------
 
Richard Henry Lee to Charles Lee, 28 August 1789
 
The enclosed paper will shew you the amendments passed the H. of
R. to the Constitution--They are short of som essentials, as
Election interference & Standing Army &c. I was surprised to find
in the Senate that it was proposed we should postpone the
consideration of Amendments until Experience had shewn the
necessity of any--As if experience was more necessary to prove
the propriety of those great principles of Civil liberty which
the wisdom of Ages has found to be necessary barriers against the
encroachments of power in the hands of frail Men! My Colleague
was sick & absent. The laboring oar was with me. A Majority of 2
thirds however agreed to take the Amendments under consideration
next Monday--I hope that if we cannot gain the whole loaf, we
shall at least have some bread.
 
--------------------------------------------------------------------------
 
Theodorick Bland Randolph to St. George Tucker, 9 September 1789
 
The house f Representatives have been for some time past engaged
on the subject of amendments to the constitution, though in my
opinion they have not made one single material one. The senate
are at present engaged on that subject; Mr. Richd. H. Lee told me
that he proposed to strike out the standing army in time of peace
but could not carry it. He also sais that it has been proposed,
and warmly favoured that, liberty of Speach and of the press may
be stricken out, as they only tend to promote licenciousness. If
this takes place god knows what will follow.
-------------------------------------------------------------------------
 
John Randolph to St. George Tucker, 11 September 1789
 
A majority of the Senate for not allowing the militia arms & if
two thirds had agreed it would have been an amendment to the
Constitution. They are afraid that the Citizens will stop their
full Career to Tyranny & Oppression.
 
--------------------------------------------------------------------------
 
Richard Henry Lee to Patrick Henry, 14 September 1789 (The paper
is in bad condition, the words in brackets are from historian
Charles Campbell's pre-Civil War transcript in the Hugh Blair
Grigsby Papers, Virginia Historical Society. There are only two
mentions of a standing army, but his view of the real strength of
the rights in amendment is interesting).
 
[I have] since waited to see the issue of the proposed amendts.
to the Constitution, that I might giver you the most [exact]
account of that business. As they came from the H. of R. they
were very far short of the wishes of our Convention, but as they
are returned by the Senate they are certainly much weakened. You
may be assured that nothing on my part was left undone to prevent
this, and every possible effort was used to give success toall
the Amendments proposed by our Country--We might as well have
attempted to move Mount Atlas upon our shoulders--In fact, the
idea of subsequent Amendments was delusion altogether, and so
intended by the greater part of those who arrogated to themselves
the name of Federalists. I am grieved to see that too many look
at the Rights of the people as a Miser examines a Security to
find a flaw in it! The great points of free election, Jury trial
in criminal cases much loosened, the unlimited right of Taxation,
and Standing Armies in peace, remain as they were. Some valuable
Rights are indeed *declared*, but the powers that remain are very
sufficient to render them nugatory at pleasure.
 
 The most essential danger from the present System arises, [in
my] opinion, from its tendency toa Consolidated government,
instead of a Union of Confederated States--The history of the
world and reason concurs in proving that so extensive a Territory
[as the] U. States comprehend never was, or can be governed in
freed[om] under the former idea--Under the latter is it
abundantly m[ore] practicable, because extended representation,
know[lege of] character, and confidence in consequence, [are
wanting to sway the] opinion of Rulers, without which, *fear* the
offspri[ng of Tyranny] can alone answer. Hence Standing Armies,
and des[potism] follows. I take this reasoning to be unrefutable,
a[nd] therefore it becomes the friends of liberty to guard [with]
perfect vigilance every right that belongs to the Sta[tes] and to
protest against every invasion of them--taking care always to
procure as many protesting States as possible--This kind of
vigilance will create caution and probably establish such a mode
of conduct as will create a system of precedent that will prevent
a Consolidating effect from taking place by slow, but sure
degrees. And also not to cease in renewing their efforts for so
amending the federal Constitution as to prevent a Consolidation
by securing the due Authority of the States. At present perhaps a
sufficient number of Legislatures cannot be got to agree in
demanding a Convention--But I shall be much mistaken if a great
sufficiency will not e'er long concur in this measure. The
preamble to the Amndmnts is realy curious--A careless reader
would be apt to suppose that the amendments desired by the States
had been graciously granted. But when the thing done is compared
with that desired, nothing can be more unlike...
 
 By comparing the Senate amendments with [those] from below by
carefully attending to the m[atter] the former will appear will
calculated to enfeeble [and] produce ambiguity--for
instance--Rights res[erved] to the States or the *People*--The
people here is evidently designed fo[r the] People of the *United
States*, not of the Individual States [page torn] the former is
the Constitutional idea of the people--We *the people* &c. It was
affirmed the Rights reserved by the States bills of rights did
not belong to the States--I observed that then they belonged to
the people of the States, but that this mode of expressing was
evidently *calculated* to give the Residuum to the people of the
U. States, which was the Constitutional language, and to deny it
to the people of the Indiv. State --At least that it left room
for cavil & false construction--They would not insert after
people thereof--altho it was moved.
 
Also on August 17, 1789, Benson made a motion to strike out "but
no person religiously scrupulous shall be compelled to bear
arms."  The COWH turned down the motion by a vote of 24 - 22.
 
 Also on August 17, 1789, Burke proposed to insert "A standing
army of regular troops in time of peace, is dangerous to public
liberty, and shall not be raised or kept up in time of peace but
from necessity, and for the security of the people, nor then
withut the consent of two-thirds of the members present of both
houses, and in all cases the military shall be subordinate to the
civil authority."  This was voted down by a majority of 13.
 
 On August 20, the House agreed to insert "in person,"  so that
the clause read, "but no person religiously scrupulous shall be
compelled to bear arms in person."
 
 On August 24, 1789, a House Resolution and Articles of
Amendments were passed and sent to the Senate.  The Amendment
then read: "Article the Fifth.  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 one religiously scrupulous of bearing
arms, shall be compelled to render military service in person."
 
 On September 4, 1789, the Senate disapproved a motion to insert
at the end, "that standing armies, in time of peace, being
dangerous to Liberty, should 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. That no
standing army or regular troops shall be raised in time of peace,
without the consent of two thirds of the Members present in both
Houses, and that no soldier shall be inlisted for any longer term
than the continuance of the war."
 
 Also on September 4, 1789, the Senate agreed to amend Article 5
to read:  "A well regulated militia, being the best security of a
free state, the right of the people to keep and bear arms, shall
not be infringed."
 
 On September 8, 1789, the _Senate Legislative Journal_ shows the
following entry as an additional article of amendment:  "That
each State respectively shall have the power to provide for
organizing, arming, and disciplining its own militia, whensoever
Congress shall omit or neglect to provide for the same.  That the
militia shall not be subject to martial law, except when in the
actual service in time of war, invasion or rebellion; and when
not in the actual service of the United States, shall be subject
only to such fines, penalties, and punishments as shall be
directed or inflicted by the laws of its own State."
 
 On September 9, 2789 the Senate replaced "the best" with
"necessary to the."  Thus, the proposed amendment 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."
 
 On September 14, 1789, the Senate agreed to twelve Articles of
Amendment.  The preamble reads:  "The Conventions of a Number of
the States having, at the Time of their adopting the
Constitution, expressed a Desire, in Order to prevent
misconstruction or abuse of its Powers, that further declaratory
and restrictive Clauses shuld be added:  And as extending the
Ground of public Confidence in the Government, will best insure
the beneficent end of its Institution--" A joint resolution of
the Senate and House of Representatives was drafted to forward
the twelve amendments to the States for consideration. The House
disagreed.  The Fourth Amendment 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."
 
 On September 24, 1789 a Conference Committee Report was issued
whereby difference were reconciled.  The Fourth Amendment
remained unchanged.  The House issued a resolution requesting the
President forward the Articles of Amendments to the States, plus
Rhode Island and North Carolina.
 
6.  But the words as adopted are confusing.
 
       I just had a conversation with Mr. A.C. Brocki, Editorial
Coordinator for the Office of Instruction of the Los Angeles
Unified School District.  Mr. Brocki taught Advanced Placement
English for several years at Van Nuys High School, as well as
having been a senior editor for Houghton Mifflin.  I was referred
to Mr. Brocki by Sherryl Broyles of the Office of Instruction of
the LA Unified School District, who described Mr. Brocki as the
foremost expert in grammar in the Los Angeles Unified School
District  -- the person she and others go to when they need a
definitive answer on English grammar.
 
       I gave Mr. Brocki my name, told him Sherryl Broyles
referred me, then asked him to parse the following sentence:
 
       "A well-schooled electorate, being necessary to the
security of a free State, the right of the people to keep and
read Books, shall not be infringed."
 
       Mr. Brocki informed me that the sentence was
overpunctuated, but that the meaning could be extracted anyway.
 
       "A well-schooled electorate" is a nominative absolute.
 
       "being necessary to the security of a free State" is a
participial phrase modifying "electorate"
 
       The subject (a compound subject) of the sentence is "the
right of the people"
 
       "shall not be infringed" is a verb phrase, with "not" as
an adverb modifying the verb phrase "shall be infringed"
 
       "to keep and read books" is an infinitive phrase modifying
"right"
 
       I then asked him if he could rephrase the sentence to make
it clearer.  Mr. Brocki said, "Because a well-schooled electorate
is necessary to the security of a free state, the right of the
people to keep and read books shall not be infringed."
 
       I asked: can the sentence be interpreted to restrict the
right to keep and read books to a well-schooled electorate --
say, registered voters with a high-school diploma?"  He said,
"No."
 
       I then identified my purpose in calling him, and read him
the Second Amendment in full:
 
       "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." He said he thought the sentence had
sounded familiar, but that he hadn't recognized it. I asked, "Is
the structure and meaning of this sentence the same as the
sentence I first quoted you?" He said, "yes."  I asked him to
rephrase this sentence to make it clearer.  He transformed it the
same way as the first sentence: "Because a well-regulated militia
is necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed."
 
       I asked him whether the meaning could have changed in two
hundred years.  He said, "No."
 
       I asked him whether this sentence could be interpreted to
restrict the right to keep and bear arms to "a well-regulated
militia."  He said, "no."  According to Mr. Brocki, the sentence
means that the people "are" the militia, and that the people have
the right which is mentioned.
 
       I asked him again to make sure:
 
       Schulman: "Can the sentence be interpreted to mean that
the right can be restricted to "a well-regulated militia?"
 
       Brocki: "No, I can't see that."
 
       Schulman: "Could another, professional in English grammar
or linguistics interpret the sentence to mean otherwise?"
 
       Brocki: "I can't see any grounds for another
interpretation."
 
       I asked Mr. Brocki if he would be willing to stake his
professional reputation on this opinion, and be quoted on this.
He said, "Yes."
 
       At no point in the conversation did I ask Mr. Brocki his
opinion on the Second Amendment, gun control, or the right to
keep and bear arms.
 
  J. Neil Schulman July 17, 1991
 
 
7.  But can not the words be reinterprated today?
 
     The principle of interperation of legal documents was well
understood at the time the Constitution was written and what was
written was most certainly written with how the words would be
interperated in mind.  Blackstone summarizes the concept in use
at the time.  The words would have been written to survive such
and interperatation with their intended meaning.
 
 HOW SHOULD THE CONSTITUTION BE READ AND INTERPRETED?
 
     In the volume _Constitutionalism in Perspective:  The United
States Constitution in Twentieth Century Politics_, the first
three essays attempt in the first section to answer the question
I've written above.  The method of interpretation I'm putting
forth here is the one explained by Christopher Wolfe in "How to
Read and Interpret the Constitution."  Niether Sanford Levinson
("Can One Account for Tastes in Constitutional Interpretation")
nor Gary J. Jacobsohn ("Concluding Essay--Rules Are Not Enough:
An Argument for Principled Unpredictability") dispute the
accuracy or application of Wolfe's presentation.  So, we have
here a basis upon which we can look at the Amendment and perhaps
make judgements about it.
 
 TRADITIONAL INTERPRETATION
 
     "The founders acted on an understanding of interpretation
which was dominant during the first, or what I call the
traditional, era of U.S. constitutional history, which ran from
the founding until the end of the nineteenth century.  During
this era there was, I think, substantial agreement about the
general rules of interpretation, although as students of U.S.
history know, there was also substantial disagreement about the
particualr interpretations of the Constitution on the basis of
these common rules."
 
     ". . . Constitutional interpretation was viewed as a special
case of legal interpretation, drawing especially on the
background of rules for legal interpretation developed in English
law.  Blackstone, for example, has a section on rules of
interpretation at the beginning of his influential *Commentaries
on the Laws of England*, published on the eve of the American
Revolution.  I will use this as an example of what the framers
assumed as part of the background for their efforts to establish
and implement--which required interpreting--the Constitution."
 
 BLACKSTONE ON INTERPRETATION
 
     "Blackstone says that the best way to interpret the law is
to explore the intention of the lawgiver at the time the law was
made 'by signs the most natural and probable.'  There are five
basic signs: 'the words, the context, the subject-matter, the
effects and consequences, or the spirit and reason of the law.'"
 
    1.  THE WORDS
 
    "The words are to be understood 'in their most usual and most
known signification . . . their general and popular use.' This is
especially true for the American Constitution, since the document
was written for the people, who are the ultimate authority in
that government, and one should assume that a writer using words
as they are understood by those with whom he wishes to
communicate.  . . . The one apparent exception to relying on the
normal 'popular' usage of words is that there may be some
technical terms such as 'Writ of Habeas Corpus' or 'ex post facto
Law.'  But then, one might argue that, in a certain sense, the
technical definition *is* the 'popular' usage. . . . Of course,
there might be more doubt with respect to some other terms, e.g.,
in how technical a sense should the word 'contract' be taken, in
Article one, section ten?"
 
    2.  THE CONTEXT
 
    "If the meaning of the words is dubious (e.g. ambiguous,
equivocal, or intricate), Blackstone says, then the meaning can
be established from the context.  Blackstone says, then the
meaning can be established from the context.  This refers not
only to the immediate verbal context, but to the broader senses
of context.  Two examples he gives are first, the preamble of the
law whose meaning is in question, and second, the use of the word
or words in similar laws passed by the same legislature and
relating to the same subject or point.
 
    3. THE SUBJECT-MATTER
 
    "Words are also to be understood in relation to the subject-
matter with which the legislator is dealing.  If the word has
several legitimate meanings, it may be that one of them is
particularly apt when the speaker is dealing with one kind of
subject rather than another, and that will help to suggest which
meaning the legislator intended."
 
     4.  EFFECTS AND CONSEQUENCES
 
     "The next 'sign' Blackstone mentions must be understood
carefully.  It is deriving aid from the 'effects and
consequences' of different meanings.  This does not mean that the
legislator is free to reject a meaning if he does not like the
consequences, in the sense that he favors a different policy
view.  The rule is applicable to more extreme cases, namely,
'where the words bear either none, or a very absurd
signification, if literally understood.'  The classic example was
the law of the city of Bologna which prohibited 'drawing blood,'
which was construed not to apply to doctors."
 
     5.  THE SPIRIT AND REASON OF THE LAW
 
     "But 'the most universal and effectual way of discovering
the true meaning of the law, when the words are dubious, is by
considering the reason and spirit of it; or the cause which moved
the legislator to enact it.'  Thus, for example, a law ought not
to be extended to cases where the reason for the law is
inapplicable if the words do not require it."
 
     Wolfe has a good deal more to say about the traditional
method of interpretation before going on to compare and contrast
it with more modern fashions.  What I've extracted here is enough
to give us a sound criteria and a common frame of reference.
 
8.   If interpretations can not vary what is the current
interpretation?
 
     The following analysis stands alone as a scholarly legal
analysis.
 
                   The EMBARRASSING SECOND AMENDMENT
 
                            Sanford Levinson
              University of Texas at Austin School of Law
 
      Reprinted from the Yale Law Journal, Volume 99, pp. 637-659
 
        One of the best known pieces of American popular art in
this century is the New Yorker cover by Saul Steinberg presenting
a map of the United States as seen by a New Yorker,  As most
readers can no doubt recall, Manhattan dominates the map;
everything west of the Hudson is more or less collapsed together
and minimally displayed to the viewer. Steinberg's great cover
depends for its force on the reality of what social psychologists
call "cognitive maps."  If one asks inhabitants ostensibly of the
same cities to draw maps of that city, one will quickly discover
that the images carried around in people's minds will vary by
race, social class, and the like. What is true of maps of places
--that they differ according to the perspectives of the
mapmakers--is certainly true of all conceptual maps.
 
                To continue the map analogy, consider in this
context the Bill of Rights; is there an agreed upon "projection"
of the concept? Is there even a canonical text of the Bill of
Rights? Does it include the first eight, nine, or ten Amendments
to the Constitution? Imagine two individuals who are asked to
draw a "map" of the Bill of Rights. One is a (stereo-) typical
member of the American Civil Liberties Union (of which I am a
card-carrying member); the other is an equally (stereo-) typical
member of the "New Right." The first, I suggest, would feature
the First Amendment2 as Main Street, dominating the map, though
more, one suspects, in its role as protector of speech and
prohibitor of established religion than as guardian of the rights
of religious believers. The other principal avenues would be the
criminal procedures aspects of the Constitution drawn from the
Fourth,3 Fifth,4 Sixth,5 and Eighth6 Amendments.  Also depicted
prominently would be the Ninth Amendment,7 although perhaps as in
the process of construction. I am confident that the ACLU map
would exclude any display of the just compensation clause of the
Fifth Amendment8 or of the Tenth Amendment.9
 
        The second map, drawn by the New Rightist, would
highlight the free exercise clause of the First Amendment,10 the
just compensation clause of the Fifth Amendment,11 and the Tenth
Amendment.12 Perhaps the most notable difference between the two
maps, though, would be in regard to 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." What would be at most a blind alley for the ACLU
mapmaker would, I am confident, be a major boulevard in the map
drawn by the New Right adherent. It is this last anomaly that I
want to explore in this essay.
 
I. The Politics Of Interpreting The Second Amendment
 
    To put it mildly, the Second Amendment is not at the
forefront of constitutional discussion, at least as registered in
what the academy regards as the venues for such discussion --law
reviews,13 casebooks,14 and other scholarly legal publications.
As Professor Larue has recently written, "the second amendment is
not taken seriously by most scholars."15
 
        Both Laurence Tribe16 and the Illinois team of Nowak,
Rotunda, and Young17 at least acknowledge the existence of the
Second Amendment in their respective treatises on constitutional
law, perhaps because the treatise genre demands more encyclopedic
coverage than does the casebook. Neither, however, pays it the
compliment of extended analysis. Both marginalize the Amendment
by relegating it to footnotes; it becomes what a
deconstructionist might call a "supplement" to the ostensibly
"real" Constitution that is privileged by discussion in the
text.18  Professor Tribe's footnote appears as part of a general
discussion of congressional power. He asserts that the history of
the Amendment "indicate[s] that the central concern of [its]
framers was to prevent such federal interferences with the state
militia as would permit the establishment of a standing national
army and the consequent destruction of local autonomy."19  He
does note, how ever, that "the debates surrounding congressional
approval of the second amendment do contain references to
individual self-protection as well as to states' rights," but he
argues that the qualifying phrase "'well regulated" makes any
invocation of the Amendment as a restriction on state or local
gun control measures extremely problematic."20  Nowak, Rotunda,
and Young mention the Amendment in the context of the
incorporation controversy, though they discuss its meaning at
slightly greater length.21  They state that "[t]he Supreme Court
has not determined, at least not with any clarity, whether the
amendment protects only a right of state governments against
federal interference with state militia and police forces..  .or
a right of individuals against the federal and state
government[s]."22
 
        Clearly the Second Amendment is not the only ignored
patch of text in our constitutional conversations. One will find
extraordinarily little discussion about another one of the
initial Bill of Rights, the Third Amendment: "No Soldier shall,
in time of peace be quartered in any house, without the consent
of the Owner, nor in time of war, but in a manner to be
prescribed by law."  Nor does one hear much about letters of
marque and reprisal23 or the granting of titles of nobility. 24
There are, however, some differences that are worth noting.
 
        The Third Amendment, to take the easiest case, is ignored
because it is in fact of no current importance what whatsoever
(although it did, for obvious reasons, have importance at the
time of the founding). It has never, for a single instant, been
viewed by any body of modern lawyers or groups of laity as highly
relevant to their legal or political concerns. For this reason,
there is almost no case law on the Amendment.25  I suspect that
few among even the highly sophisticated readers of the Journal
can summon up the Amendment without the aid of the text.
 
        The Second Amendment, though, is radically different from
these other pieces of constitutional text just mentioned, which
all share the attribute of being basically irrelevant to any
ongoing political struggles. To grasp the difference, one might
simply begin by noting that it is not at all unusual for the
Second Amendment to show up in letters to the editors of
newspapers and magazines.26 That judges and academic lawyers,
including the ones that write casebooks, ignore it is most
certainly not evidence for the proposition that no one else cares
about it. The National Rifle Association, to name the most
obvious example, cares deeply about the Amendment, and an
apparently serious Senator of the United States averred that the
right to keep and bear arms is the "right most valued by free
men."27 Campaigns for Congress in both political parties, and
even presidential campaigns, may turn on the apparent commitment
of the candidates to a particular view of the Second Amendment.
This reality of the political process reflects the fact that
millions of Americans, even if (or perhaps especially if) they
are not academics, can quote the Amendment and would disdain any
presentation of the Bill of Rights that did not give it a place
of pride.
 
        I cannot help but suspect that the best explanation for
the absence of the Second Amendment from the legal consciousness
of the elite bar, including that component found in the legal
academy, 28 is derived from a mixture of sheer opposition to the
idea of private ownership of guns and the perhaps subconscious
fear that altogether plausible, perhaps even "winning,"
interpretations of the Second Amendment would present real
hurdles to those of us supporting prohibitory regulation. Thus
the title of this essay --The Embarrassing Second Amendment --
for I want to suggest that the Amendment may be profoundly
embarrassing to many who both support such regulation and view
themselves as committed to zealous adherence to the Bill of
Rights (such as most members of the ACLU).  Indeed, one sometimes
discovers members of the NRA who are equally committed members of
the ACLU, differing with the latter only on the issue of the
Second Amendment but otherwise genuinely sharing the libertarian
viewpoint of the ACLU.
 
        It is not my style to offer "correct" or "incorrect"
interpretations of the Constitution.29  My major interest is in
delineating the rhetorical structures of American constitutional
argument and elaborating what is sometimes called the "politics
of interpretation," that is, the factors that explain why one or
another approach will appeal to certain analysts at certain
times, while other analysts, or times, will favor quite different
approaches. Thus my general tendency to regard as wholly
untenable any approach to the Constitution that describes itself
as obviously correct and condemns its opposition as simply wrong
holds for the Second Amendment as well. In some contexts, this
would lead me to label as tendentious the certainty of NRA
advocates that the Amendment means precisely what they assert it
does. In this particular context--i.e., the pages of a journal
whose audience is much more likely to be drawn from an elite,
liberal portion of the public--I will instead be suggesting that
the skepticism should run in the other direction, That is, we
might consider the possibility that "our" views of the Amendment,
perhaps best reflected in Professor Tribe's offhand treatment of
it, might themselves be equally deserving of the "tendentious"
label.
 
II. The Rhetorical Structures of the Right to Bear Arms
 
 
        My colleague Philip Bobbitt has, in his book
Constitutional Fate,30 spelled out six approaches -- or
"modalities," as he terms them -- of constitutional argument.
These approaches, he argues, comprise what might be termed our
legal grammar. They are the rhetorical structures within which
"law-talk" as a recognizable form of conversation is carried on.
The six are as follows:
 
1) textual argument -- appeals to the unadorned language of the
text;31
 
2) historical argument -- appeals to the historical background of
the vision being considered, whether the history considered be
general, such as background but clearly crucial events (such as
the American Revolution). or specific appeals to the so-called
intentions of framers;32
 
3) structural argument -- analyses inferred from the particular
structures established by the Constitution, including the
tripartite division of the national government; the separate
existence of both state and nation as political entities; and the
structured role of citizens within the political order;33
 
4) doctrinal argument -- emphasis on the implications of prior
cases decided by the Supreme Court;34
 
5) prudential argument -- emphasis on the consequences  of
adopting a proferred decision in any given case;35
 
6) ethical argument -- reliance on the overall "ethos" of limited
government as centrally constituting American political
culture.36
 
        I want to frame my consideration of the Second Amendment
within the first five of Bobbitt's categories; they are all
richly present in consideration of the Amendment might mean. The
sixth, which emphasizes the ethos of limited government, doe s
not play a significant role in the debate of the Second
Amendment.37
 
 
A. Text
 
 
        I begin with the appeal to text. Recall 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." No one has ever described the
Constitution as a marvel of clarity, and the Second Amendment is
perhaps one of the worst drafted of all its provisions. What is
special about the Amendment is the inclusion of an opening clause
-- a preamble, if you will -- that seems to set out its purpose.
No similar clause is part of any other Amendment,38 though that
does not, of course, mean that we do not ascribe purposes to
them. It would be impossible to make sense of the Constitution if
we did not engage in the ascription of purpose. Indeed, the major
debates about The First Amendment arise precisely when one tries
to discern a purpose, given that "literalism" is a hopelessly
failing approach to interpreting it. We usually do not even
recognize punishment of fraud -- a classic speech act -- as a
free speech problem because we so sensibly assume that the
purpose of the First Amendment could not have been, for example,
to protect the circulation of patently deceptive information to
potential investors in commercial enterprises. The sharp
differences that distinguish those who would limit the reach of
the First Amendment to "political" speech from those who would
extend it much further, encompassing non-deceptive commercial
speech, are all derived from different readings of the purpose
that underlies the raw text.39
 
        A standard move of those legal analysts who wish to limit
the Second Amendment's force is to focus on its "preamble" as
setting out a restrictive purpose. Recall Laurence Tribe's
assertion that the purpose was to allow the states to keep their
militias and to protect them against the possibility that the new
national government will use its power to establish a powerful
standing army and eliminate the state militias. This purposive
reading quickly disposes of any notion that there is an
"individual" right to keep and bear arms. The right, if such it
be, is only a states's right. The consequence of this reading is
obvious: the national government has the power to regulate--to
the point of prohibition--private ownership of guns, since that
has, by stipulation, nothing to do with preserving state
militias. This is, indeed, the position of the ACLU, which reads
the Amendment as protection only the right of "maintaining an
effective state militia...[T]he individual's right to keep a nd
bear arms applies only to the preservation or efficiency of a
well-regulated [state] militia. Except for lawful police and
military purposes, the possession of weapons by individuals is
not constitutionally protected."40
 
        This is not a wholly implausible reading, but one might
ask why the Framers did not simply say something like "Congress
shall have no power to prohibit state-organized and directed
militias." Perhaps they in fact meant to do something else.
Moreover, we might ask if ordinary readers of the late 18th
Century legal prose would have interpreted it as meaning
something else. The text at best provides only a starting point
for a conversation. In this specific instance, it does not come
close to resolving the questions posed by federal regulation of
arms. Even if we accept the preamble as significant, we must
still try to figure out what might be suggested by guaranteeing
to "the people the right to keep and bear arms;" moreover, as we
shall see presently, even the preamble presents unexpected
difficulties in interpretation.
 
 
B. History
 
 
        One might argue (and some have) that the substantive
right is one pertaining to a collective body -- "the people"--
rather than to individuals. Professor Cress, for example, argues
that state constitutions regularly use the words "man" or
"person" in regard to "individual rights such as freedom of
conscience," whereas the use in those constitutions of the term
"the people" in regard to a right to bear arms is intended to
refer to the "sovereign citizenry" collectively organized.41
Such an argument founders, however, upon examination of the text
of the federal Bill of Rights itself and the usage there of terms
"the people" in the First, Fourth, Ninth, and Tenth Amendments.
 
        Consider that the Fourth Amendment protects "[t]he right
of he people to be secure in their persons," or that the First
Amendment refers to the "right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances." It is difficult to know how one might plausibly read
the Fourth Amendment as other than a protection of individual
rights, and it would approach the frivolous to read the assembly
and petition clause as referring only to the right of state
legislators to meet and pass a remonstrance directed to Congress
or the President against some government act. The Tenth Amendment
is trickier, though it does explicitly differentiate between
"state" and "the people" in terms of retained rights.42
Concededly, it would be possible to read the Tenth Amendment as
suggesting only an ultimate right revolution by the collective
people should the "states" stray too far from their designated
role of protecting the rights of the people. This reading follows
directly from the social contract theory of the state.( But, of
course, many of these rights are held by individuals.)
 
        Although the record is suitably complicated, it seems
tendentious to reject out of hand the argument that the one
purpose of the Amendment was to recognize an individual's right
to engage in armed self-defense against criminal conduct.43
Historian Robert E. Shallhope supports this view, arguing in his
article The Ideological Origins of the Second Amendment44 that
the Amendment guarantees individuals the right "to possess arms
for their own personal defense." 45  It would be especially
unsurprising if this were the case, given the fact that the
development of a professional police force (even within large
American cities) was still at least half a century away at the
end of the colonial period .46  I shall return later in this
essay to this individualist notion of the Amendment, particularly
in regard into the argument that "changing circumstances,"
including plausibility. But I want now to explore a second
possible purpose of the Amendment, which as a sometime political
theorist I find considerably more interesting.
 
        Assume, as Professor Cress has argued, that the Second
Amendment refers to a communitarian, rather than an individual
right.47  We are still left the task of defining the relationship
between the community and the state apparatus.  It is this
fascinating problem to which I now turn.
 
       Consider once more the preamble and its reference to the
importance of a well-regulated militia. Is the meaning of the
term obvious? Perhaps we should make some effort to find out what
the term "militia" meant to 18th century readers and writers,
rather than assume that it refers only to Dan Quayle's Indiana
National Guard and the like. By no means am I arguing that the
discovery of that meaning is dispositive as to the general
meaning of the Constitution for us today. But it seems foolhardy
to be entirely uninterested in the historical philology behind
the Second Amendment.
 
        I, for one, have been persuaded that the term "militia"
did not have the limited reference that Professor Cress and many
modern legal analysts assign to it. There is strong evidence that
"militia" refers to all of the people, or least all of those
treated as full citizens of the community. Consider, for example,
the question asked by George Mason, one of the Virginians who
refused to sign the Constitution because of its lack of a Bill of
Rights: "Who are the militia? They consist now of the whole
people."48  Similarly, the Federal Farmer, one of the most
important Anti-Federalist opponents of the Constitution, referred
to a "militia, when properly formed, [as] in fact the people
themselves."49  We have, of course, moved now from text to
history. And this history is most interesting, especially when we
look at the development of notions of popular sovereignty. It has
become almost a cliche of contemporary American historiography to
link the development of American political thought, including its
constitutional aspects, to republican thought in England, the
"country" critique of the powerful "court" centered in London.
 
        One of the school's most important writers, of course,
was James Harrington, who not only was in influential at the time
but also has recently been given a certain pride of place by one
of the most prominent of contemporary "neo-republicans,"
Professor Frank Michelman.50  One historian describes Harrington
as having made "the most significant contribution to English
libertarian attitudes toward arms, the individual, and
society."51  He was a central figure in the development of the
ideas of popular sovereignty and republicanism.52 For Harrington,
preservation of republican liberty requires independence, which
rests primarily on possession of adequate property to make men
free from coercion by employers or landlords. But widespread
ownership of land is not sufficient. These independent yeoman
would also bear arms. As Professor Morgan puts it, "[T]hese
independent yeoman, armed and embodied in a militia, are also a
popular government's best protection against its enemies, whether
they be aggressive foreign monarchs or scheming demagogues within
the nation itself."53
 
        A central fear of Harrington and of all future
republicans was a standing army, composed of professional
soldiers. Harrington and his fellow republicans viewed a standing
army as a threat to freedom, to be avoided at all almost all
costs. Thus, says Morgan, "A militia is the only safe form of
military power that a popular government can employ; and because
it is composed of the armed yeomanry, it will prevail over the
mercenary professionals who man the armies of neighboring
monarchs."54
 
        Scholars of the First Amendment have made us aware of the
importance of John Trenchard and Thomas Gordon, whose Cato's
Letters were central to the formation of the American notion of
freedom of the press.  That notion includes what Vincent Blasi
would come to call the "checking value" of a free press, which
stands as a sturdy exposer of governmental misdeeds.55  Consider
the possibility, though, that the unlimited "checking value" in a
republican polity is the ability of an armed populace,
presumptively motivated by a shared commitment to the common
good, to resist governmental tyranny.56 Indeed, one of Cato's
letters refers to "the Exercise of despotick Power [as] the
unrelenting War of an armed Tyrant upon his unarmed
subjects..."57
 
        Cress persuasively shows that no one defended universal
possession of arms. New Hampshire had no objection to disarming
those who "are or have been in actual rebellion," just as Samuel
Adams stressed that only "peaceable citizens" should be protected
in their right of "keeping their own arms."58  All these points
can be conceded, however, without conceding as well that Congress
-- or, for that matter, the States, -- had the power to disarm
these "peaceable citizens."
 
        Surely one of the foundations of American political
thought of the period was the well-justified concern about
political corruption and consequent governmental tyranny. Even
the Federalists, fending off their opponents who accused them of
foisting an oppressive new scheme upon the American people, were
careful to acknowledge the risk of tyranny. James Madison, for
example, speaks in Federalist Number Forty- Six of "the advantage
of being armed, which the Americans possess over the people of
almost every other nation."59  The advantage in question was not
merely the defense of American borders; a standing army might
well accomplish that. Rather, an armed public was advantageous in
protecting political liberty. It is therefore no surprise that
the Federal Farmer, the nom de plume of an anti-federalist critic
of the new Constitution and its absence of a Bill of Rights,
could write that "to preserve liberty, it is essential that the
whole body of the people always posses s arms, and be taught
alike, especially when young, how to use them..."60  On this
matter, at least, there was no cleavage between the
pro-ratification Madison and his opponent.
 
        In his influential Commentaries on the Constitution,
Joseph Story, certainly no friend of Anti-Federalism, emphasized
the "importance" of the Second Amendment.61  He went on to
describe the militia as the "natural defence of a free country"
not only "against sudden foreign invasions" and "domestic
insurrections," with which one might well expect a Federalist to
be concerned, but also against "domestic usurpations of power by
rulers."62  "The right of the citizens to keep and bear arms has
justly been considered," Story wrote, "as the palladium of the
liberties of a republic; since it offers a strong moral check
against the usurpation and arbitrary power by rulers; and will
generally, even if these are successful in the first instance,
enable the people to resist and triumph over them."63
 
        We also see this blending of individualist and collective
accounts of the right to bear arms in remarks by Judge Thomas
Cooley, one of the most influential 19th century constitutional
commentators. Noting that the state might call into its official
militia only "a small number" of the eligible citizenry, Cooley
wrote that "if the right [to keep and bear arms] were limited to
those enrolled, the purpose of this guaranty might be defeated
altogether by the action or neglect to act of the government it
was meant to hold in check."64 Finally, it is worth noting the
remarks of Theodore Schroeder, one of the most important
developers of the theory of freedom of speech early in this
century.65  "[T]he obvious import [of the constitutional
guarantee to carry arms]," he argues, "is to promote a state of
preparedness for self-defense even against the invasions of
government, because only governments have ever disarmed any
considerable class of people as a means toward their
enslavement."66
 
        Such analyses provide the basis for Edward Abbey's
revision of a common bumper sticker, "If guns are outlawed, only
the government will have guns."67  One of the things this slogan
has helped me to understand is the political tilt contained
within the Weberian definition of the state -- i.e., the
repository of a monopoly of the legitimate means of violence 68
-- that is so commonly used by political scientists. It is a
profoundly statist definition, the product of a specifically
German tradition of the (strong) state rather than of a
strikingly different American political tradition that is
fundamentally mistrustful of state power and vigilant about
maintaining ultimate power, including the power of arms, in the
populace.
 
        We thus see what I think is one of the most interesting
points in regard to the new historiography of the Second
Amendment -- its linkage to conceptions of republican political
order. Contemporary admirers of republican theory use it as a
source of both critiques of more individualist liberal theory and
of positive insight into the way we today might reorder our
political lives.69  One point of emphasis for neo-republicans is
the value of participation in government, as contrasted to mere
representation by a distant leadership, even if formally elected.
But the implications of republicanism might push us in
unexpected, even embarrassing, directions; just as ordinary
citizens should participate actively in governmental
decision-making, through offering their own deliberative
insights, rather than be confined to casting ballots once every
two or four years for those very few individuals who will
actually make the decisions, so should ordinary citizens
participate in the process of law enforcement and defense of
liberty rather than rely on professionalized peacekeepers,
whether we call them standing armies or police.
 
D. Structure
 
 
        We have also passed imperceptibly into a form of
structural argument, for we see that one aspect of the structure
of checks and balances within the purview of 18th century thought
was the armed citizen. That is, those who would limit the meaning
of the Second Amendment to the constitutional protection of
state-controlled militias agree that such protection rests on the
perception that militarily competent states were viewed as a
potential protection against a tyrannical national government.
Indeed, in 1801 several governors threatened to call out state
militias if the Federalists in Congress refused to elect Thomas
Jefferson president.70  But this argument assumes that there are
only two basic components in the vertical structure of the
American polity--the national government and the states. It
ignores the implication that might be drawn from the Second,
Ninth, and Tenth Amendments; the citizenry itself can be viewed
as an important third component of republican governance insofar
as it stands ready to defend republican liberty against the
depredations of the other two structures, however futile that
might appear as a practical matter.
 
        One implication of this republican rationale for the
Second Amendment is that it calls into question the ability of a
state to disarm its citizenry. That is, the strongest version of
the republican argument would hold it to be a "privilege and
immunity of United States citizenship"--of membership in a
liberty-enhancing political order -- to keep arms that could be
taken up against tyranny wherever found, including, obviously,
state government. Ironically, the principal citation supporting
this argument is to Chief Justice [Roger] Taney's egregious
opinion in Dred Scott,71  where he suggested that an
uncontroversial attribute of citizenship, in addition to the
right migrate from one state to another, was the right to possess
arms. The logic of Taney's argument at the point seems to be
that, because it was inconceivable that the Framers could have
genuinely imagined blacks having the right to possess arms, it
follows that they could not have envisioned them as being
citizens, since citizenship entailed the right. Taney's seeming
recognition of a right to arms is much relied on by opponents of
gun control.72 Indeed, recall Madison's critique, in Federalist
Numbers Ten and Fourteen, of republicanism's traditional emphasis
on the desirability of small states as preservers of republican
liberty. He transformed this debate by arguing that the states
would be less likely to preserve liberty because they could so
easily fall under the sway of a local dominant faction, whereas
an extended republic would guard against this danger.  Anyone who
accepts the Madisonian argument could scarcely be happy enhancing
the power of the states over their own citizens; indeed, this has
been one of the great themes of American constitutional history,
as the nationalism of the Bill of Rights has been deemed
necessary in order to protect popular liberty against state
depredation.
 
D. Doctrine
 
 
   Inevitably one must at least mention, even though there is not
space to discuss fully, the so-called incorporation controversy
regarding the application of the Bill of Rights to the states
through the Fourteenth Amendment. It should be no surprise that
the opponents of gun control appear to take a "full
incorporationist" view of that Amendment.73  They view the
privileges and immunities clause, which was eviscerated in the
Slaughterhouse Cases,74 as designed to require the states to
honor the rights that had been held, by Justice Marshall in
Barron v.  Baltimore in 1833,75 to restrict only the national
government. In 1875 the Court stated, in United States v.
Cruickshank,76 that the Second Amendment, insofar as it grants
any right at all, "means no more than that it shall not be
infringed by Congress.  This is one of the amendments that has no
other effect than to restrict the powers of the national
government..." Lest there be any remaining doubt on this point,
the Court specifically cited the Cruickshank language eleven
years later in Presser v. Illinois,77 in rejecting the claim that
the Second Amendment served to invalidate an Illinois statute
that prohibited "any body of men whatever, other than the regular
organized volunteer militia of this State, and the troops of the
United States....to drill or parade with arms in any city, or
town, of this State, without the license of the Governor
thereof..."78
 
        The first "incorporation decision," Chicago, B & Q.R.Co.
v. Chicago,79 was not delivered until eleven years after Presser;
one therefore cannot know if the judges in Cruickshank and
Presser were willing to concede that any of the amendments
comprising the Bill of Rights  were anything more than
limitations on congressional or other national power. The obvious
question, given the modern legal reality of the incorporation of
almost all of the right s protected by the First, Fourth, Fifth,
Sixth, and Eighth Amendments, is what exactly justifies treating
the Second Amendment as the great exception. Why, that is, could
Cruickshank and Presser be regarded as binding precedent any more
than any of the other "pre-incorporation" decisions refusing to
apply given aspects of the BIll of Rights against the states?
 
        If one agrees with Professor Tribe that the Amendment is
simply a federalist protection of state rights, then presumably
there is nothing to incorporate.80  If, however, one accepts the
Amendment as a serious substantive limitation on the ability of
the national government to regulate the private possession of
arms based on either the "individualist" or the "new-republican"
theories sketched above, then why not follow the
"incorporationist" logic applied to other amendments a nd limit
the states as well in their powers to regulate (and especially to
prohibit) such possession?  The Supreme Court has almost
shamelessly refused to discuss the issue,81  but that need not
stop the rest of us.
 
        Returning, though, to the question of Congress' power to
regulate the keeping and bearing of arms, one notes that there
is, basically, only one modern case that discusses the issue,
United States v. Miller,82 decided in 1939 . Jack Miller was
charged with moving a sawed-off shotgun in interstate commerce in
violation of the National Firearms Act of 1934. Among other
things, Miller and a compatriot had not registered the firearm,
as required by the Act. The court below ha d dismissed the
charge, accepting Miller's argument that the Act violated the
Second Amendment.
 
        The Supreme Court reversed unanimously, with the arch-
conservative Justice McReynolds writing the opinion.83
Interestingly enough, he emphasized that there was no evidence
showing that a sawed- off shotgun "at this time has some
reasonable relationship to the preservation or efficiency of a
well regulated militia."84 And "[c]ertainly it is not within
judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the
common defense."85 Miller might have had a tenable argument had
he been able to show that he was keeping or bearing a weapon that
clearly had a potential military use.86
 
        Justice McReynolds went on to describe the purpose of the
Second Amendment as "assur[ing] the constitution and render[ing]
possible the effectiveness of [the militia].87  He contrasted the
Militia with troops of a standing army, which the Constitution
indeed forbade the states to keep without the explicit consent of
Congress. The sentiment of the time strongly disfavored standing
armies; the common view was that adequate defense of country and
laws could be secured through the Militia -- civilians primarily,
soldiers on occasion."88  McReynolds noted further that "the
debates in the Convention, the history and legislation of
Colonies and States, and the writings of approved commentators
[all] [s]how plainly enough that the Militia comprised all males
physically capable of acting in concert for the common
defense."89
 
        It is difficult to read Miller as rendering the Second
Amendment meaningless as a control on Congress. Ironically,
MIller can be read to support some of the most extreme anti-gun
control arguments, e.g., that the individual citizen has a right
to keep and bear bazookas, rocket launchers, and other armaments
that are clearly relevant to modern warfare, including, of
course, assault weapons. Arguments about the constitutional
legitimacy of a prohibition by Congress of private ownership of
handguns or, what is much more likely, assault rifles, might turn
on the usefulness of such guns in military settings.
 
E. Prudentialism
 
 
        WE have looked at four of Bobbitt's categories -- text,
history, structure, and case law doctrine -- and have seen, at
the very least, that the arguments on behalf of a "strong" Second
Amendment are stronger than many of us might wish were the case.
This, then, brings us up to the fifth category, prudentialism, or
an attentiveness to the practical consequences, which is clearly
of great importance in any debate about gun control. The standard
argument in favor of strict control and, ultimately, prohibition
of private ownership focuses on the extensive social costs of
widespread distribution of firearms. Consider, for example, a
recent speech given by former Justice Lewis Powell to the
American Bar Association.He noted that over 40, 000 murders were
committed in the United States in 1986 and 1987, and that fully
sixty percent of them were committed with firearms.90 Justice
Powell indicated that "[w]ith respect to handguns," in contrast
"to sporting rifles and shotguns [,] it is not easy to understand
why the Second Amendment, or the notation of liberty, should be
viewed as creating a right to own and carry a weapon that
contributes so directly to the shocking number of murders in our
society."91
 
        It is hard to disagree with Justice Powell; it appears
almost crazy to protect as a constitutional right something that
so clearly results in extraordinary social cost with little, if
any, compensating social advantage. Indeed, since Justice
Powell's talk, the subject of assault rifles has become a staple
of national discussion, and the opponents of regulation of such
weapons have deservedly drawn the censure of even conservative
leaders like William Bennett. It is almost impossible to imagine
that the judiciary would strike down a determination by Congress
that the possession of assault weapons should be denied to
private citizens.
 
        Even if one accepts the historical plausibility of the
arguments advanced above, the overriding temptation is to say
that times and circumstances have changed and that there is
simply no reason to continue enforcing an outmoded, and indeed,
dangerous, understanding of private rights against public order.
This criticism is clearest in regard to the so-called
individualist argument, for one can argue that the rise of a
professional police force to enforce the law has made irrelevant,
and perhaps even counter-productive, the continuation of a strong
notion of self-help as the remedy for crime.92
 
        I am not unsympathetic to such arguments. It is no
purpose of this essay to solicit membership for the National
Rifle Association or to express any sympathy for what even Don
Kates, a strong critic of the conventional dismissal of the
Second Amendment, describes as "the gun lobby's obnoxious habit
of assailing all forms of regulation on 2nd Amendment grounds."93
And yet... Circumstances may well have changed in regard to
individual defense, although we ignore at our political peril the
good faith belief of many Americans that they cannot rely on the
police for protection against a variety of criminals. Still, l et
us assume that the individualist reading of the Amendment has
been vitiated by changing circumstances. Are we quite so
confident that circumstances are equally different in regard to
the republican rationale outlined earlier?
 
        One would, of course, like to believe that the state,
whether at the local or national level, presents no threat to
important political values, including liberty. But our propensity
to believe that this is the case may be little more than a sign
of how truly different we are from our radical forbearers. I do
not want to argue that the state is necessarily tyrannical; I am
not an anarchist. But it seems foolhardy to assume that the armed
state will necessarily be benevolent. The American political
tradition is, for good or ill, based in large measure on a
healthy mistrust of the state. The development of widespread
suffrage and greater majoritarianism in our polity is itself no
sure protection, at least within republican theory. The
republican theory is predicated on the stark contrast between
mere democracy, where people are motivated by selfish personal
interest, and a republic, where civic virtue, both in common
citizen and leadership, tames selfishness on behalf of the common
good. In any event, it is hard for me to see how one can argue
that circumstances have so changed us as to make mass disarmament
constitutionally unproblematic.94
 
        Indeed, only in recent months have we seen the brutal
suppression of the Chinese student demonstrations in Tiananmen
Square. It should not surprise us that some NRA sympathizers have
presented that situation as an abject lesson to those who
unthinkingly support the prohibition of  private gun ownership.
"[I]f all Chinese citizens kept arms, their rulers would hardly
have dared to massacre the demonstrators... The private keeping
of hand-held personal firearms is within the constitutional
design for a counter to government run amok... As the Tianamen
Square tragedy showed so graphically, AK 47's fall into that
category of weapons, and that is why they are protected by the
Second Amendment."95  It is simply silly to respond that small
arms are irrelevant against nuclear armed states; Witness
contemporary Northern Ireland and the territories occupied by
Israel, where the sophisticated weaponry of Great Britain and
Israel have proved almost totally beside the point. The fact that
these may not be pleasant examples does not affect the principal
point, that a state facing a totally disarmed population is in a
far better position, for good or ill, to suppress popular
demonstrations and uprisings than one that must calculate the
possibilities of its soldiers and officials being injured or
killed.96
 
 
III. Taking the Second Amendment Seriously
 
 
  There is one further problem of no small import; if one does
accept the plausibility of any of the arguments on behalf of a
strong reading of the Second Amendment, but, nevertheless,
rejects them in the name of social prudence and the present -day
consequences produced by finicky adherence to earlier
understandings, why do we not apply such consequentialist
criteria to each and every part of the Bill of Rights?97  As
Ronald Dworkin has argued, what it meant to take rights seriously
is that one will honor them even when there is significant social
cost in doing so. If protecting freedom of speech, the rights of
criminal defendants, or any other parts of the Bill of Rights
were always (or even most of the time) clearly cost less to the
society as a whole, it would truly be impossible to understand
why they would be as controversial as they are. The very fact
that there are often significant costs -- criminals going free,
oppressed groups having to hear viciously racist speech and so on
-- helps to account for the observed fact that those who view
themselves as defenders of the Bill of Rights are generally
antagonistic to prudential arguments.  Most often, one finds them
embracing versions of textual, historical, or doctrinal arguments
that dismiss as almost crass and vulgar any insistence that times
might have changed and made too "expensive" the continued
adherence to a given view. "Cost-benefit" analysis, rightly or
wrongly, has come to be viewed as a "conservative" weapon to
attack liberal rights.98  Yet one finds that the tables are
strikingly turned when the Second Amendment comes into play. Here
it is "conservatives" who argue in effect that social costs are
irrelevant and "liberals" who argue for a notion of the "living
Constitution" and "changed circumstances" that would have the
practical consequence of removing any real bite from the Second
Amendment.
 
        As Fred Donaldson of Austin, Texas wrote, commenting on
those who defended the Supreme Court's decision upholding
flag-burning as compelled by a proper (and decidedly
non-prudential) understanding of the First Amendment, "[I]t seems
inconsistent for [defenders of the decision] to scream so loudly"
at the prospect of limiting the protection given expression
"while you smile complacently at the Second torn and bleeding. If
the Second Amendment is not worth the paper it is written on,
what price the First?"99  The fact that Mr. Donaldson is an
ordinary citizen rather than an eminent law professor does not
make his question any less pointed or its answer less difficult.
 
       For too long, most members of the legal academy have
treated the Second Amendment as the equivalent of an embarrassing
relative, whose mention brings a quick change of subject to
other, more respectable,  family members. That will no longer d
o. It is time for the Second Amendment to enter full scale into
the consciousness of the legal academy. Those of us who agree
with Martha Minow's emphasis on the desirability of encouraging
different "voices" in the legal conversation100 should be
especially aware of the importance of recognizing the attempts of
Mr. Donaldson and his millions of colleagues to join the
conversation. To be sure, it is unlikely that Professor Minow had
those too often peremptorily dismissed as "gun nuts " in mind as
possible providers of "insight and growth," but surely the call
for sensitivity  to different or excluded voices cannot extend
only those groups "we" already, perhaps "complacent[ly]," believe
have a lot to tell "us."101  I am not so naive as to believe that
conversation will overcome the chasm that now separates the
sensibility of, say, Senator Hatch and myself as to what
constitutes the "right[s] most valued by free men [and
women]."102  It is important to remember that one will still need
to join up sides and engage in vigorous political struggle.  But
it might at least help to make the political sides appear more
human to one another. Perhaps "we" might be led to stop referring
casually to "gun nuts" just as, maybe, members of the NRA could
be brought to understand the real fear that the currently almost
uncontrolled system of gun ownership sparks in the minds of many
whom they casually dismiss as "bleeding-heart liberals." Is not,
after all, the possibility of serious, engaged discussion about
political issues at the heart of what is most attractive in both
liberal and republican versions of politics?
 
 
 
 
FOOTNOTES
 
1.  It is not irrelevant that the Bill of Rights submitted to the
states in 1789 included not only what are now the first ten
Amendments, but also two others, Indeed, what we call the First
Amendment was only the third one of the list submitted to the
states. The initial "first amendment" in fact concerned the
future size of the House of Representatives, a topic of no small
importance to the Anti- Federalists, who were appalled by the
smallness of the House seemingly envisioned by the Philadelphia
farmers. The second prohibited any pay raise voted by the members
of Congress to themselves from taking effect until an election
"shall have intervened." See J. Goebel, 1 The Oliver Wendell
Holmes Devise History Of the Supreme Court OF the United States:
antecedents and beginnings to 1801, at 442n.162 (1971). Had all
of the initial twelve proposals been ratified, we would, it is
possible, have a dramatically different cognitive map of the Bill
of Rights. At the very least, one would neither hear defenses of
the "preferred status" of freedom of speech framed in terms of
the "firstness" of some special intention of the Framers to
safeguard the particular rights laid out there.
 
2.  "Congress shall make no law respecting an establishment of
religion...or abridging the freedom of speech, or of the press;
or of the right of the people to peaceably to assemble, and to
petition the Government for a redress of grievances." U.S. Const.
Amend. I
 
3.       "The right of the people to be secured in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no Warrants shall issue but
upon probable cause, supported by Oath or affirmation, a nd
particularly describing the place to be searched, and the persons
or things to be seized." U.S. Const. Amend. IV.
 
4.       "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment of indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual services in the time of
War or public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life and limb; nor
shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without
due process of law..." U.S. Const. Amend. V
 
5.       "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have previously ascertained by la
w, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defense." U.S. Const.
Amend. VI.
 
6.       "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted." U.S.
Const. Amend. VIII.
 
7.       "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by
the people." U.S. Const. Amend.IX.
 
8.       "[N]or shall private property be taken for public use,
without just compensation." U.S. Const. Amend. V.
 
9.       "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people." U.S. Const. Amend. X.
 
10. "Congress shall make no law...prohibiting the free exercise
thereof [religion]..." U.S. Const. Amend. I.
 
11. See supra note 8.
 
12. See supra note 9.
 
13. There are several law review articles discussing the
Amendment. See, e.g. Lund, infra note 96, and the articles cited
in Dowlut & Knoop, State Constitutions and the Right to Keep and
Bear Arms, 7 Okla. U.L. Rev. 177, 178 n.3 (1982). See also the
valuable symposium on Gun Control, edited by Don Kates, in 49 Law
& Contemp. Probs. 1-267 (1986), including articles by Shallhope,
The Armed Citizen in the Early Republic, at 125; Kates, The
Second Amendment: A Dialogue, at 143; Halbrook, What the Framers
Intended: A Linguistic Analysis of the Right to "Bear Arms," at
151. The symposium also includes a valuable bibliography of the
published materials on gun control, including Second Amendment
considerations, at 251-67. The most important single article is
almost undoubtedly Kates, Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Not
the least significant aspect of Kates' article is that it is
basically the only one to have appeared in an "elite" law review.
However, like many of the authors of other Second Amendment
pieces, Kates is a practicing lawyer rather than a legal
academic. I think it is accurate to say that no one recognized by
the legal academy as a "major" writer on constitutional law has
deigned to turn his or her talents to a full consideration of the
Amendment. But see Larue, Constitutional Law and Constitutional
History, 36 Buffalo L.Rev. 373, 375-78 (1988)(briefly discussing
Second Amendment). Akhil Reed Amar's reconsiderations of the
foundations of the Constitution also promises to delve more
deeply into the implications of the Amendment. See Amar, Of
Sovereignty and Federalism, 96 Yale L.J. 1425, 1495-1500 (1987).
Finally, there is one book that provides more in depth treatment
of the Second Amendment: S. Halbrook, That Every Man Be Armed,
The Evolution of a Constitutional Right (1984). George Fletcher,
in his study of the Bernard Goetz case, also suggests that Second
Amendment analysis not frivolous, though he does not elaborate
the point. G. Fletcher, A Crime of Self-Defense 156-58, 210-11
(1988). One might well find this overt reference to "elite" law
reviews and "major" writers objectionable, but it is foolish to
believe that these distinctions do not exist within the academy,
or more importantly, that we cannot learn about the sociology of
academic discourse through taking them into account. No one can
plausibly believe that the debates that define particular periods
of academic discourse are a simple reflection of "natural"
interest in the topic. Nothing helps an issue so much as its
being taken up as an obsession by a distinguished professor from,
say Harvard or Yale.
 
14. One will search the "leading" casebooks in vain for any
mention of the Second Amendment. Other than its being included in
the text of the Constitution that all of the casebooks reprint, a
reader would have no reason to believe that the Amendment exists
or could possibly be of interest to the constitutional analyst. I
must include, alas, P. Brest and S. Levinson, Processes of
Constitutional Decisionmaking (2d ed. 1983), within this
critique, though I have every reason to believe that this will
not be true of the forthcoming third edition.
 
15. Larue, supra note 13, at 375.
 
16. L. Tribe, American Constitutional Law (2d ed. 1988).
 
17. J. Nowak, R. Rotunda,& J. Young, Constitutional Law (3d ed.
19860.
 
18. For a brilliant and playful meditation on the way the legal
world treats footnotes and other marginal phenomena, see Balking,
The Footnote, 83 Nw. U. L. Rev. 275, 276-81 (1989).
 
19. Tribe, supra note 16 at 299 n6.
 
20. Id.; see also J. Ely, Democracy and Distrust 95 (1980)
("[T]he framers and ratifiers...opted against leaving to the
future the attribution of [other] purposes, choosing instead
explicitly to legislate the goal in terms of which the provision
was to be interpreted.") As shall be seen below, see infra text
accompanying note 38, the preamble may be less plain in its
meaning than Tribe's (and Ely's) confident argument suggests.

21. J. Nowak, R. Rotunda & J. Young supra note 17, at 316n.4.
They do go on to cite a spate of articles by scholars who have
debated the issue.
 
22. Id, at 316 n. 4.
 
23. U.S. Const. art. I Sec. 10
 
24. U.S. Const. art. I sec. 9, cl. 8.
 
25. See, e.g., Legislative Reference Serv., Library of Congress,
the Constitution of the United States of America; Analysis and
Interpretation 923 (1964), which  quotes the Amendment and then a
comment from Miller, The Constitution 646 (1 893): "This
amendment seems to have been thought necessary. It does not
appear to have been the subject of judicial exposition; and it is
so thoroughly with our ideas, that further comment is
unnecessary." Cf. Engblom v.  Carey, 724 F.2d 2 8 (2d Cir. 1983),
affg 572 F. Supp. 44 (S.D.N.Y.  1983). Engblom grew out of a
"statewide strike of correction officers, when they were evicted
from their facility-residence...and members of the National Guard
were housed in their residences without their consent." The
district court had initially granted summary judgment for the
defendants in a suit brought by the officers claiming a
deprivation of their right under the Third Amendment. The Second
Circuit, however, reversed on the ground that it could not "say
that as a matter of law appellants were not entitled to the
protection of the Third Amendment," Engblom v. Carey, 677 F.2d
957, 964 (2d Cir.  1982). The District Court on remand held that,
as the Third Amendment rights had not been clearly established at
the time of the strike, the defendants were protected by a
qualified immunity, and it is this opinion that was upheld by the
Second Circuit. I am grateful to Mark Tushnet for bringing this
case to my attention.
 
26. See, e.g. The Firearms the Second Amendment Protects, N.Y.
Times, June 9, 1988, at A22, col 2 (three letters); Second
Amendment and Gun Control, L.A. Times, March 11, 1989, Part II,
at 9 col 1. 1 (nine letters) ; What 'Right to Bear Arms'?, N.Y.
Times, July 20, 1989, at A23, col 1(national ed.)(op.  ed.  essay
by Daniel Abrams); see also We Rebelled to Protect Our Gun
Rights, Washington Times, July 20, 1989, at F2 col. 4.
 
27. Fee Subcommittee on the Constitution of the Comm. on the
Judiciary, the Right to Keep and Bear Arms, 97th Cong., 2d Sess.
viii (1982)(preface by Senator Orrin Hatch)[thereinafter  The
Right to Keep and Bear Arms].
 
28. See supra notes 13-14.
 
29. See Levinson, Constitutional Rhetoric and the Ninth
Amendment, 64 Chi-Kent L.Rev. 131 (1988).
 
30. P. Bobbit, Constitutional Fate (1982).
 
31. Id. at 25-38. 32. Id. at 9-24. 33. Id. at 75-92. 34. Id. at
39-58 35. Id. at 59-73. 36. Id. at 93-119. 37. For the record, I
should note that Bobbitt disagrees with this statement, making an
eloquent appeal (in conversation) on behalf of the classic
American value of self-reliance for the defense of oneself and,
perhaps more importantly, one's family.  I certainly do not doubt
the possibility of constructing an "ethical" rationale for
limiting the state's power to prohibit gun ownership.
Nonetheless, I would claim that no one unpersuaded by any of the
arguments derived from the first five models would suddenly
change his or her mind upon being presented with an "ethical"
argument.
 
38. Cf., e.g. the patents and copyrights clause, which sets out
the power of Congress "[t]o promote the progress of Science and
useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries." U.S. Const. art. I Sec. 8.
 
39.For examples of this, see F. Schauer, Freedom of Speech: A
Philosophical Enquiry (1982); Levinson, First Amendment, Freedom
of Speech, Freedom of Expression: Does it Matter What We Call It?
80 Nw. U.L.Rev. 767 (1985)(reviewing M. Redish, Freedom of
Expression: A Critical Analysis (1984)).
 
40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of
the national board of the ACLU, for providing me with a text of
the ACLU's current policy on gun control.
 
41. Cress, An Armed Community: The Origins and Meaning of the
Right to Bear Arms, 71 J. Am. Hist. 22, 31 (1984).
 
42. See U.S. Const. Amend. X.
 
43. For a full articulation of the individualist view of the
Second Amendment, see Kates Handgun Prohibition and the Original
Meaning of the Second Amendment, 82 Mich. L. Rev. 204(1983). One
can also find an efficient presentation of this view in Lund,
infra note 96, at 117.
 
44. Shallhope, The Ideological Origins of the Second Amendment,
69 J. Am. Hist. 599 (1982). 45. Id. at 614.
 
46. See Daniel Boorstin's laconic comment that "the requirements
for self-defense and food-gathering had put firearms in the hands
of nearly everyone" in colonial America. D. Boorstin -- the
Colonial Experience 353 (1958). The beginnings of a professional
police force in Boston are traced in R. Lane, Policing the City:
Boston 1822-1855 (1967). Lane argues that as of the earlier of
his two dates, "all the major eastern cities...had several kinds
of officials serving various police functions, all of them
haphazardly inherited from the British and colonial past. These
agents were gradually drawn into better defined and more coherent
organizations." Id. at 1. However, as Oscar Handlin points out in
his introduction to the book, "to bring into being a professional
police force was to create precisely the kind of hireling body
considered dangerous by conventional political theory," Id. at
vii.
 
47. See Cress, supra note 41.
 
48. 3 J. Elliott, Debates in the General State Conventions 425
(3d ed. 1937)(statement of George Mason, June 14, 1788),
reprinted in Kates, supra note 13, at 261 n. 51.
 
49. Letters from the Federal Farmer to the Republican 123 (W.
Bennett e.1978)(ascribed to Richard Henry Lee), reprinted in
Kates, supra note 13 at 261 n. 51.
 
50. Michelman, The Supreme Court 1985 Term -- Forward: Traces of
Self Government, 100 Harvard L. Rev. 4, 39 (1986)(Harrington is
"pivotal figure in the history of the 'Atlantic' branch of
republicanism that would find its way to America").
 
51. Shallhope, supra note 44, at 602.
 
52. Edmund Morgan discusses Harrington in his recent book,
Inventing the People 85-87 (1988)(analyzing notion of popular
sovereignty in American thought). 53. Id. at 156. 54. Id. at 157.
Morgan argues incidentally, that the armed yeomanry was neither
effective as a fighting force nor particularly protective of
popular liberty, but that is another matter. For our purposes,
the ideological perceptions are surely more important the
"reality" accompanying them. Id. at 160-65.
 
55. Blasi, The Checking Value in First Amendment Theory, 1977 A.
B. Found. Res. J. 521.
 
56. See Lund, infra note 96, at 111-116.
 
57. Shallhope, supra note 44, at 603 (quoting 1755 edition of
Cato's Letters). Shallhope also quotes from James Burgh, another
English writer well known to American revolutionaries: "The
possession of arms is the distinction between a freeman and a
slave.  He, who has nothing, and who himself belongs to another,
must be defended by him whose property he is, and needs no arms.
But he, who thinks he is his own master, and has what he can call
his own, ought to have arms to defend himself, and what he
possesses; else he lives precariously; and at discretion." Id at
604. To be  sure, Burgh also wrote that only men of property
should in fact comprise the militia: "A militia consisting of any
others than the men of property in a country, is no militia; but
a mungrel army." Cress, supra note 41, at 27 (emphasis in
original)(quoting J. Burgh, 2 Political Disquisitions: or An
Enquiry Into Public Errors, Defects, and Abuses (1774-75)).
Presumably, though, the widespread distribution o f property
would bring with it equally widespread access to arms and
membership in the militia.
 
58. See Cress, supra note 41, at 34.
 
59. The Federalist No. 46 at 299 (J. Madison)(C. Rossiter ed.
1961).
 
60. Letters from the Federal Farmer to the Republican 124 (W.
Bennett ed. 1978).
 
61. 3 J. Story, Commentaries Sec. 1890 (1833) quoted in 5 The
Founders' Constitution 214 (P. Kurland & R. Lerner eds. 1987).
 
62. Id.
 
63. Id. Lawrence Cress, despite his forceful of Shallhope's
individualists rendering of the Second Amendment, nonetheless
himself notes "[t]he danger posed by manipulating demagogues,
ambitious rulers, and foreign invaders to free institutions
required the vigilance of citizen-soldiers cognizant of the
common good." Cress, supra note 41, at 41 (emphasis added).
 
64. T. Cooley, The General Principles of Constitutional Law in
The United States of America 298 (3d ed. 1898): "The Right of the
People to bear arms in their own defense, and to form and drill
military organizations in defense of the State, may not b e very
important in this country, but it is significant as having been
reserved by the people as a possible and necessary resort for the
protection of self- government against usurpation, and against
any attempt on the part of those who may for the time be in
possession of State authority or resources to set aside the
constitution and substitute their own rule for that of the
people. Should the contingency ever arise when it would be
necessary for the people to make use of the arms in their hands
for the protection of constitutional liberty, the proceeding, so
far from being revolutionary, would be in strict accord with
popular right and duty. Cooley advanced this same idea in The
Abnegation of Self- Government, 12 Princeton Rev.  213-14 (1883).
 
65. See Rabban, The First Amendment in Its Forgotten Years, 90
Yale L.J. 514, 560 (1981) ("[P]rodigious theoretical writings of
Theodore Schroeder...were the most extensive and libertarian
treatments of freedom of speech in the prewar period"); see also
Graber, Transforming Free Speech (forthcoming 1990)(manuscript at
4-12; on file with author).
 
66. T. Schroder, Free Speech for Radicals 104 (reprint ed. 1969).
 
67. Shalhope, supra note 44, at 45.
 
68. See M. Weber, The Theory of Social and Economic Organization
156 (T. Parsons ed. 1947), where he lists among "[t]he primary
formal characteristics of the modem state" the fact that:
"to-day, the use of force is regarded as legitimate only so far
as it is either permitted by the state or prescribed by it... The
claim of the modern state to monopolize the use of force is as
essential to it as its character of compulsory jurisdiction and
continuous organization."
 
69. See, e.g., Symposium: The Republican Civil Tradition, 97 Yale
L.J. 1493-1723 (1988).
 
70. See D. Malone, 4 Jefferson and His Times: Jefferson the
President: First Term, 1801-1805, AT 7-11 (1970)(republican
leaders ready to use state militias to resist should lame duck
Congress attempt to violate clear dictates of Article II by
designating someone other than Thomas Jefferson as President in
1801).
 
71. Scott v. Sanford  60 U.S. (19 How.) 393,417 (1857).
 
72. See, e.g., Featherstone, Gardiner & Dowlut, The Second
Amendment to the United States Constitution Guarantees and
Individual Right to Keep and Bear Arms, supra note 27, at 100.
 
73. See, e.g..., Halbrook, The Fourteenth Amendment and the Right
to Keep and Bear Arms: The Intent of the Framers, in The Right to
Keep and Bear Arms, supra note 27, at 79. Not the least of the
ironies observed in the debate about the Second Amendment is that
NRA conservatives like Senator Hatch could scarcely have been
happy with the wholesale attack leveled by former Attorney
General Meese on the incorporation doctrine, for here is one area
where some "conservatives" may in fact b e more zealous adherents
of that doctrine than are most liberals, who, at least where the
Second Amendment is concerned, have a considerably more selective
view of incorporation.
 
74. 83 U.S. 36 (1873).
 
75. 32 U.S. (7 Pet.)243 (1833).
 
76. 92 U.S. 542, 553 (1875).
 
77. 116 U.S. 252, 267 (1886). For a fascinating discussion of
Presser, see Larue, supra note 13, at 386-90.
 
78. 116 U.S. at 253. There is good reason to believe that this
statute, passed by the Illinois legislature in 1879, was part of
an effort to control (and indeed, suppress) widespread labor
unrest linked to the economic troubles of the time. For the
background of the Illinois statute, see P. Avrich, The Haymarket
Tragedy 45 (1984): "As early as 1875, a small group of Chicago
socialists, most of them German immigrants, had formed an armed
club to protect the workers against police and military assaults,
as well as against physical intimidation at the polls. In the
eyes of its supporters...the need for such a group was amply
demonstrated by the behavior of the police and [state-
controlled] militia during the Great Strike of 1877, a national
protest by labor triggered by a ten percent cut in wages by the
Baltimore and Ohio Railroad, which included the breaking up of
workers' meetings, the arrest of socialist leaders, [and] the use
of club, pistol and bayonet against strikers and their
supporters...Workers...were resolved never again to be shot and
beaten without resistance. Nor would the stand idly by while
their meeting places were invaded or their wives and children
assaulted. The were determined , as Albert Parsons [a leader of
the anarchist movement in Chicago] expressed it, to defend both
'their persons and their rights.'"
 
79. 166 U.S. 226 (1897) (protecting rights of property owners by
requiring compensation for takings of property).
 
80. My colleague Douglas Laycock has reminded me that a similar
argument was made by some conservatives in regard to the
establishment clause of the First Amendment. Thus, Justice
Brennan noted that "[i]t has been suggested, with some support in
history, that absorption of the First Amendment's ban against
congressional legislation 'respecting an establishment of
religion' is conceptually impossible because the Framers meant
the Establishment Clause also to foreclose any attempt by
Congress to disestablish the official state churches." Abington
School District v. Schempp, 374 U.S. 203, 254 (1963) (Brennan,
J., concurring) (emphasis added). According to this reading, it
would be illogical to apply the establishment clause against the
states "because that clause is not one of the provisions of the
Bill of Rights which in terms protects a 'freedom' of the
individual," id. at 256, inasmuch as it is only a federalist
protection of states against a national establishment (or
disestablishment). "The fallacy in this contention," responds
Brennan, "is that it underestimates the role of the Establishment
Clause as a co-guarantor, with the Free Exercise Clause, of
religious liberty." Id. Whatever the sometimes bitter debates
about the precise meaning of "establishment," it is surely the
case that Justice Brennan, even as he almost cheerfully concedes
that at one point in our history the "states-right" reading of
the establishment clause would have been thoroughly plausible,
expresses what has become the generally accepted view as to the
establishment clause being some kind of limitation on the state
as well as on the national government. One may wonder whether the
interpretive history of the establishment clause might have any
lessons for the interpretation of the Second Amendment.
 
81. It refused, for example, to review the most important modern
gun control case, Quilici v. Village of Morton Grove, 695 F. 2d
261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), where the
Seventh Circuit Court of Appeal s upheld a local ordinance in
Morton Grove, Illinois, prohibiting the possession of handguns
within its borders.
 
82. 307 U.S. 174 (1939.
 
83. Justice Douglas, however, did not participate in the case.
 
84. Miller, 307 U.S. at 178.
 
85. Id. at 178 (citation omitted).
 
86. Lund notes that "commentators have since demonstrated that
sawed- off or short barrelled shotguns are commonly used as
military weapons." Lund, infra note 96, at 109.
 
87. 307 U.S. at 178.
 
88. Id. at 179.
 
89. Id.
 
90. L. Powell, Capital Punishment, Remarks Delivered to the
Criminal Justice Section, ABA 10 (Aug 7, 1988).
 
91. Id. at 11.
 
92. This point is presumably demonstrated by the increasing
public opposition of police officials to private possession of
handguns (not to mention assault rifles).
 
93. D. Kates, Minimalist Interpretation of the Second Amendment 2
(draft Sept. 29, 1986) (unpublished manuscript available from
author).
 
94. See Lund, supra note 96, at 116.
 
95. Wimmershoff-Caplan, The Founders and the AK-47, Washington
Post, July 6, 1989, at A18, col. 4, reprinted as Price of Gun
Deaths Small Compared to Price of Liberty, Austin-American
Statesman, July 11, 1989, at A11. Ms. Wimmershoff-Caplan is
identified as a "lawyer in New York" who is "a member of the
National Board of the National Rifle Association." Id. One of the
first such arguments in regard to the events in Tianamen Square
was made by William A. Black in a letter, Citizens Without Guns,
N.Y.  Times, June 18, 1989, at D26, col. 6. Though describing
himself as "find[ing] no glory in guns [and] a profound
anti-hunter," he nonetheless "stand[s] with those who would
protect our right to keep and bear arms" and cited for support
the fact that "none [of the Chinese soldiers] feared bullets: the
citizens of China were long ago disarmed by the Communists." "Who
knows," he asks, "what the leaders and the military and the
police of our America will be up to at some point in the future?
We need an armed citizenry to protect our liberty." As one might
expect, such arguments draw heated responses.  See Rudlin, The
Founders and the AK-47 (Cont'd) Washington Post, July 20, 1989 at
A22, col 3.  Jonathan Rudlin accused Ms. Wimmershoff-Caplan of
engaging in Swiftian satire, as no one could "take such a
brilliant burlesque seriously." Neal Knox, however, endorsed her
essay in full, adding the Holocaust to the list of examples:
"Could the Holocaust have occurred if Europe's Jews had owned
thousands of then-modern military Mauser bolt action rifles?" See
also, Washington Post, July 12, 1989, at A22, for other letters.
 
96.  See Lund, The Second Amendment, Political Liberty, and the
Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987) at 115:
"The decision to use military force is not determined solely by
whether the contemplated benefits can be successfully obtained
through the use of available forces, but rather determined by the
ratio of those benefits to the expected costs. It follows that
any factor increasing the anticipated cost of a military
operation makes the conduct of that operation incrementally more
unlikely. This explained why a relatively poorly armed nation
with a small population recently prevailed in a war against the
United States, and it explains why governments bent on the
oppression of their people almost always disarm the civilian
population before undertaking more drastically oppressive
measures." I should note that I wrote (and titled) this article
before reading Lund's article, which begins, "The Second
Amendment to the United States Constitution h as become the most
embarrassing provision of the Bill of Rights." I did hear Lund
deliver a talk on the Second Amendment at the University of Texas
Law School during the winter of 1987, which may have penetrated
my consciousness more than I realized while drafting this
article.
 
97. See D. Kates, supra note 93, at 24-25 n. 13, for a discussion
of this point.
 
98. See, e.g., Justice Marshall's dissent, joined by Justice
Brennan, in Skinner v. Railway Labor Executive Association, 109
S.  Ct.  1402, (1989) upholding the government's right to require
drug tests of railroad employees following accidents. It begins
with his chastising the majority for "ignor[ing] the text and
doctrinal history of the Fourth Amendment, which require that
highly intrusive searches of this type be based on probable
cause, not on the evanescent cost-benefit calculations of
agencies or judges," id. at 1423, and continues by arguing that
"[t]he majority's concern with the railroad safety problems
caused by drug and alcohol abuse is laudable; its cavalier
disregard for the Constitution is not. There is no drug exception
to the Constitution, any more than there is a communism exception
or an exception for other real or imagined sources of domestic
unrest." Id. at 1426.
 
99. Donaldson, Letter to Editor, Austin America-Statesman, July
8, 1989, at A19, col. 4.
 
100. See Minow, The Supreme Court 1986 Term -- Foreword: Justice
Engendered  101 Harv. L. Rev. 1074-90 (1987). "We need settings
in which to engage in the clash of realities that breaks us out
of settled and complacent meanings and create s opportunities for
insight and growth." Id. at 95; see also Getman, Voices, 66 Tex.
L. Rev. 577 (1988).
 
101. And, perhaps more to the point, "you" who insufficiently
listen to "us" and to "our" favored groups.
 
102. See supra note and accompanying text.
 
Transcribed by
 
Chris Crobaugh 30460 Otten Rd. N. Ridgeville, Ohio 44039 (216)
327-6655
 
Lorain County Firearms Defense Association Ohio Constitution
Defense Council
 
9.   What does the American Civil Liberties Union have to say on
the matter?
 
     The ACLU takes the position that gun ownership is a
collective rather than a group right while disregarding the
composition of the group that constitutes the militia.  However,
they do not support gun control laws based upon their violation
of due process.
 
From: "The Policy Guide of the ACLU"
 
- Gun Control Policy #47 -
 
   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 or efficiency
of a well-regulated militia. Except for lawful police and
military purposes, the possession of weapons by individuals is to
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
where the activity, or the object sought to be possessed, is
inherently dan- gerous 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.
 
   However, particular federal or state laws on licensing,
registration, prohibition or other regulation of the manufacture,
shipment, sale, purchase or possession of guns may raise civil
liberties questions.  For example, the enforcement process of
systems of licensing, registration, or prohibition may threaten
extensive invasions of privacy as owners are required to disclose
details of ownership and information about their personal
history, views, and associations. Furthermore, police enforcement
of such schemes may encourage entrapment, illegal searches and
other means which violate civil liberties.
 
   The ACLU takes the position that any such legislation must
be drafted bearing these problems in mind and seeking to minimize
them. {Board Minutes, June 14-15, 1979.} ------------------
FOOTNOTE 1. When the Board adopted the June 1979 policy, it was
suggested that it was unclear as to whether or not the ACLU
supported gun control as a civil liberties matter, or simply
did not oppose government regulation on this issue. In order
to clarify this question the following sentence was added to
paragraph three of the policy as a footnote, "It is the sense of
this body, that the word 'justifies' in this policy means we will
affirmatively support gun control legislation." -
 
   At the April 12-13, 1980 Board meeting, the policy's
footnote was reconsidered. Several Board members believed that
the statement was inconsistent with the rest of the policy
because there was no civil liberties rationale within the policy
for affirmative ACLU support of gun control legislation.  The
Board then moved to refer the policy to the Due Process
Committee to refine and discuss further the rationale for
affirmative ACLU support of gun control legislation.
 
   At the June 23-24, 1982 Board meeting, the Due Process
Committee recommended deletion of the footnote from the gun
control policy.  The Committee's recommendation was based on
the fact that no acceptable civil liberties rationale could be
developed for affirmative support of gun control legislation.
The link between guns and the breakdown of civil liberties, the
Committee suggested, contains too much of the approach to crime
control. And crime control, the Committee said, includes
measures violative of civil liberties. The possibility that a
person who might be defending his or her self at home might be
arrested for use of a handgun is troubling. If we support gun
control legislation, we are encouraging the police to search
homes, cars and persons. The Due Process Committee suggested
that the problem with the footnote was that it was indefensible
on civil liberties grounds, and that it is not the ACLU's role to
commit the ACLU to involve ourselves in social issues by
finding a constitutional basis where there is none. Even
though gun control is a desirable social objective, and it
would be nice to find a civil liberties rationale for
affirmative ACLU support of gun control legislation, the
Committee noted that the ACLU has never supported particular
remedies for particular crimes, and as such, we cannot support
gun control legislation.
 
10.   Do guns really prevent crime?
 
     First let us look at the Uniform Crime Report from the FBI.
 
     Below are numbers for 1990 crime rates in all 50 states plus
DC. Note that the higher the gun rights index, the lower the
crime rate in all cases except rape -- which may be due to the
fact that attempted rapes are reported much more likely to be
reported than successful rapes (the category rape includes both).
I haven't been successful in locating info which separates
attempted rape from completed rape.
 
   NOTE: rates are in crimes per 100,000 people, unless otherwise
specified.
 
               Gun    Crime    Vio-   Prop-  Homi-   Rape
              Rights  Index    lent    erty   cide
              Index   Total   Crime   Crime   **'    **''
Average for:
  Top third     41    5995.7   778.3  5217.4  12.2   38.5
  Middle third  66    5181.5   517.5  4664.0   7.0   41.6
  Bottom third  80    4742.7   419.6  4323.1   6.1   39.3
 
D. C.            0   10774.3  2458.2  8316.0  77.8   49.9
Illinois         7    5935.1   967.4  4967.7  10.3   39.4
Tennessee       28    5051.0   670.4  4380.6  10.5   49.5
Texas           33    7826.8   761.4  7065.3  14.1   51.5
Arkansas        33    4866.9   532.2  4334.7  10.3   43.3
California      42    6603.6  1045.2  5558.4  11.9   42.6
New York        43    6363.8  1180.9  5182.8  14.5   29.8
Utah            44    5659.9   283.9  5376.0   3.0   37.8
New Jersey      45    5447.2   647.6  4799.7   5.6   29.8
Iowa            46    4100.9   299.7  3801.2   1.9   18.4
N. Dakota       50    2922.4    73.9  2848.5   0.8   17.8
Hawaii          50    6106.7   280.9  5825.8   4.0   32.5
N. Carolina     52    5485.9   623.5  4862.3  10.7   34.3
Florida         54    8810.8  1244.3  7566.5  10.7   52.4
Massachusetts   54    5297.9   736.3  4561.5   4.0   33.7
Ohio            55    4843.4   506.2  4337.3   6.1   46.8
Maryland        56    5830.5   919.0  4911.5  11.5   45.7
 
Missouri        58    5120.6   715.3  4405.3   8.8   32.5
Minnesota       61    4538.8   306.1  4232.7   2.7   34.0
Virginia        62    4440.6   350.6  4090.0   8.8   31.0
Colorado        65    6053.7   526.0  5527.8   4.2   46.2
New Mexico      66    6684.1   780.2  5903.9   9.2   49.7
Kentucky        66    3299.4   390.4  2909.1   7.2   29.0
Oklahoma        66    5598.7   547.5  5051.2   8.0   47.0
Wisconsin       66    4395.1   264.7  4130.4   4.6   20.7
Alaska          66    5152.7   524.5  4628.2   7.5   72.9
Arizona         66    7888.7   652.4  7236.4   7.7   40.9
Nebraska        66    4213.1   330.0  3883.1   2.7   30.0
Kansas          66    5193.1   447.7  4745.4   4.0   40.4
Michigan        66    5994.8   790.4  5204.4  10.4   77.6
S. Carolina     67    6045.2   976.6  5068.7  11.2   53.7
Connecticut     69    5386.7   553.7  4833.0   5.1   27.9
Mississippi     69    3869.1   340.4  3528.8  12.2   44.1
Wyoming         69    4210.6   301.4  3909.3   4.9   29.5
 
Oregon          71    5646.0   506.8  5139.2   3.8   46.9
Rhode Island    72    5352.7   431.9  4920.8   4.8   24.7
W. Virginia     72    2503.0   169.3  2333.7   5.7   23.6
Georgia         76    6763.6   756.3  6007.3  11.8   53.6
Alabama         77    4915.2   708.6  4206.7  11.6   32.6
Idaho           77    4057.1   275.7  3781.4   2.7   27.3
Washington      78    6222.9   501.6  5721.3   4.9   64.0
Indiana         79    4683.3   473.9  4209.4   6.2   37.9
Pennsylvania    80    3476.1   431.0  3045.1   6.7   25.8
New Hampshire   81    3645.2   131.5  3513.7   1.9   34.8
Delaware        83    5360.4   655.2  4705.1   5.0   88.1
Nevada          83    6063.6   600.9  5462.7   9.7   62.2
S. Dakota       83    2909.3   162.8  2746.5   2.0   34.3
Montana         83    4502.1   159.3  4342.8   4.9   24.4
Maine           84    3697.8   143.2  3554.5   2.4   19.7
Louisiana       88    6486.7   898.4  5588.2  17.2   42.2
Vermont         99    4340.9   127.2  4213.7   2.3   25.9
 
 
               Gun    Robb-   Aggra-  Burg-   Theft   Motor
              Rights   ery    vated    lary          Vehicle
              Index          Assault                  Theft
Average for:
  Top third     41     294.8   432.9  1244.4  3331.7   640.2
  Middle third  66     121.8   347.1  1100.3  3131.6   432.0
  Bottom third  80     112.1   262.2  1011.4  2913.8   397.9
 
D. C.            0    1213.5  1117.0  1983.0  4996.9  1336.1
Illinois         7     394.0   523.6  1063.0  3262.0   642.8
Tennessee       28     191.2   419.2  1264.0  2545.1   571.5
Texas           33     260.8   435.1  1851.5  4304.7   909.0
Arkansas        33     113.2   365.4  1210.9  2834.4   289.4
California      42     377.0   613.6  1345.4  3197.5  1015.5
New York        43     624.7   512.0  1160.7  2979.4  1024.7
Utah            44      59.9   186.3   880.6  4257.6   237.7
New Jersey      45     301.0   311.1  1017.2  2843.0   939.5
Iowa            46      39.2   240.1   808.4  2822.9   169.9
N. Dakota       50       7.8    47.4   426.6  2288.8   133.1
Hawaii          50      91.4   153.0  1228.2  4217.1   380.5
N. Carolina     52     152.1   426.4  1530.4  3048.3   283.7
Florida         54     416.8   764.4  2170.6  4569.6   826.3
Massachusetts   54     217.1   481.4  1112.7  2525.3   923.6
Ohio            55     188.5   264.7   982.5  2864.1   490.6
Maryland        56     363.8   497.9  1119.9  3082.9   708.7
 
Missouri        58     216.4   457.6  1065.8  2800.2   539.4
Minnesota       61      92.7   176.7   907.2  2959.9   365.6
Virginia        62     123.3   187.6   731.1  3031.4   327.5
Colorado        65      90.6   385.0  1208.8  3890.6   428.4
New Mexico      66     115.1   606.2  1738.7  3828.5   336.7
Kentucky        66      69.1   285.2   766.9  1942.7   199.4
Oklahoma        66     121.9   370.5  1447.5  3002.0   601.7
Wisconsin       66     112.7   126.7   751.4  2962.6   416.5
Alaska          66      76.7   367.4   894.3  3168.5   565.4
Arizona         66     160.9   442.8  1669.9  4703.0   863.5
Nebraska        66      51.1   246.2   723.8  2981.1   178.2
Kansas          66     117.6   285.7  1166.5  3243.5   335.4
Michigan        66     234.0   468.4  1143.3  3347.4   713.7
S. Carolina     67     152.4   759.3  1380.4  3302.4   385.8
Connecticut     69     234.8   286.0  1227.7  2874.4   730.9
Mississippi     69      86.2   198.0  1251.2  2070.0   207.6
Wyoming         69      15.9   251.1   631.0  3129.3   149.0
 
Oregon          71     144.3   311.8  1135.4  3545.2   458.6
Rhode Island    72     122.0   280.4  1271.1  2695.3   954.4
W. Virginia     72      37.9   102.1   657.1  1522.7   153.9
Georgia         76     263.5   427.4  1619.4  3714.3   673.6
Alabama         77     143.7   520.7  1103.4  2755.4   347.8
Idaho           77      15.0   230.7   813.2  2802.7   165.5
Washington      78     130.0   302.7  1262.9  4011.4   447.1
Indiana         79     101.3   328.4   943.3  2827.1   439.0
Pennsylvania    80     176.2   222.3   729.1  1810.5   505.5
New Hampshire   81      27.2    67.6   735.5  2534.2   244.0
Delaware        83     164.8   397.3   970.5  3290.8   443.9
Nevada          83     238.3   290.7  1367.4  3502.7   592.5
S. Dakota       83      12.4   114.1   527.4  2108.9   110.2
Montana         83      21.7   108.4   709.1  3391.2   242.5
Maine           84      25.1    96.0   823.0  2554.9   176.6
Louisiana       88     269.8   569.2  1437.9  3548.6   601.7
Vermont         99      11.7    87.2  1087.3  2918.5   207.9
 
Collegiate Dictionary (1981)
intentional killings.
reporting error.
All crime figures from 1990 FBI UCR's
see crime_definitions for descriptions of crimes.
 
     We note crime appears to be roughly inverse to gun control
laws.
 
     Now we look at the following study.
 
The following figures come from the tables of Attack injury and
Crime Completion Rates in Robbery and Assault Incidents by
Self-Protection Method, U.S., 1979-1985, from Gary Kleck, "Crime
Control Though the Private Use of Armed Force", Social Problems,
Vol. 35, No. 1, Feb 1988:
 
                  ASSAULT VICTIM STATISTICS
Method of Self Protection   % Attacked  % Injured   Total # Times Used
Used Gun                    23.2%       12.1%           386083
Used Knife                  46.4        29.5            123062
Used Other Weapons          41.4        25.1            454570
Used Physical Force         82.8        52.1           6638823
Tried to get help or
  frightened offender       55.2        40.1           4383117
Threatened or reasoned
  with offender             40.0        24.7           5743008
Nonviolent resistance,
  including evasion         40.0        25.5           8935738
Other measures              36.1        20.7           1451103
 
Any self-protection         49.5        30.7          21801957
 
No self-protection          39.9        27.3           6154763
 
TOTAL                       47.3        29.9          27956719
 
     We note the gun is the most effective means by a factor of
two over any other method and three and one half times over
[unarmed] physical force.
 
     Although this does constitute proof in a statistical sense,
it does give a reasonable explanation as to at least one
contributing factor, the use of guns, appears to give a causal
explanation for the inverse relationship between gun control and
crime.
 
====================================================================
 
                         READING LIST
 
Posted on Prodigy by John Marshall, El Paso, TX, 4/18/92
 
2ND AMENDMENT BIBLIOGRAPHY
 
Hays, "The Right to Keep and Bear Arms, A Study in Judicial
Misinterpretation," 2 Wm. & Mary L.R. 381 (1960)
 
Sprecher, "The Lost Amendment," 51 Am. Bar Assn.J. 554 & 665 (2
parts)(1965)
 
Comment "The Right to Keep and Bear Arms: A Necessary
Constitutional Guarantee Or an Outmoded Provision Of the Bill of
Rights?," 31 Albany L.R. 74 (1967)
 
Levine & Saxe, "The Second Amendment: The Right to Bear Arms," 7
Houston L.R. 1 (1969)
 
McClure, "Firearms and Federalism," 7 Idaho L.R., 197 (1970)
 
Hardy & Stompoly, "Of Arms And the Law," 51 Chi-Kent L.R. 62
(1974)
 
Weiss, "A Reply to Advocates of Gun Control Law," 52 Jour. Urban
Law 577 (1974)
 
Caplan, "Restoring the Balance: The Second Amendment Revisitied,"
5 Fordham Urban L.J. 31 (1976)
 
Whisker, "Historical Development and Subsequent Erosion of the
Right to keep and Bear Arms," 78 W. VA L.R. 171 (1976)
 
Caplan, "handgun Control: Constitutional Or Unconstitutional?,"
10 NC Central L.J. 53 (1978)
 
Cantrell, "The Right of the Individual to Bear Arms," 53 Wis. Bar
Bull 21 (Oct. 1980)
 
Halbrook, "The Jurisprudence of the Second and Fourteenth
Amendments," 4 Geo. Mason L.R. 1 (1981)
 
Caplan, "The Right of the Individual to Bear Arms: A Recent
Judicial Trend," 1982 Detroit Coll. of Law Review 789 (1982)
 
Gardiner, "To Preserve Liberty: A Look At the Right to Keep and
Bear Arms," 10 Northern KY Univ. Law Review 63 (1982)
 
Halbrook "To Keep and Bear Their Private Arms: The Adoption of
the Second Amendment, 1787-1791," 10 Northern KY Univ. Law Review
13 (1982)
 
Shalhope, "The Ideological Origins of the Second Amendment," 69
J. of Am. History 599 (1982)
 
"The Right to Keep and Bear Arms," Report of the Subcommittee on
the Constitution of the Committee on the Judiciary, United States
Senate, 97th Congress, 2nd Session (1982)
 
Dowlut, "The Right to Arms: Does the Constitution Or the
Prediliction of Judges Reign?," 36 OK L.R. 65 (1983)
 
Malcolm, "The Right of the People to Keep and Bear Arms: The
Common Law Tradition," 10 Hastings Const. Law Quarterly 285
(Winter 1983)
 
Kates, "Handgun Prohibition and the Original Meaning of the
Second Amendment," 82 Mich. L.R. 204 (1983)
 
Halbrook "That Every Man be Armed: The Evolution of a
Constitutional Right (U. of NM Press (1984)
 
Halbrook, "What the Framers Intended: A Linguistic Analysis Of
The Right to 'Bear Arms," 49 Law & Contemp.Problems 151 (1986)
 
Hardy, Origins and Development of the Second Amendment,"
Southport CT, Blacksmith (1986)
 
Hardy, "The Second Amendment and the Historiography Of The Bill
of Rights," 4 Jour. of Law & Politics 1 (1987)
 
Levinson, "The Embarrassing Second Amendment," 99 Yale L.J. 637
(1989)
 
Bordenet, "The Right to Possess Arms: The Intent Of the Framers
of the Second Amendment, 21 Univ. W. Los Angeles L. Rev. 1
(1990).
 
Type of Material:   Book
LC Call Number: HV8059 .G77
Author: Greenwood, Colin.
Title:  Firearms control: a study of armed crime and firearms control in
England and Wales.
Publication Info:   London, Routledge and Kegan Paul, 1972.
Phys. Description:  viii, 272 p. illus., map. 23 cm.
Notes:  Includes bibliographical references.
Subjects:   Gun control--Great Britain.
Subjects:   Firearms--Law and legislation--Great Britain.
Subjects:   Crime--Great Britain.
Subjects:   Violent crimes--Great Britain.
LC Card Number: 73150974 //r922
ISBN:   0-7100-7435-2
 


------------------------------------------------
(This file was found elsewhere on the Internet and uploaded to the
Patriot FTP site by S.P.I.R.A.L., the Society for the Protection of
Individual Rights and Liberties. E-mail alex@spiral.org)
