www1.law.ucla.edu/~volokh/beararms/testimon.htm
Some Other Contemporaneous Constitutional Provisions With a Similar Grammatical Structure V 18th- and 19th-Century Commentary A William Blackstone, Commentaries on the Laws of England (1765) B St.
Relevant Statutes A Militia Act of 1792 B The currently effective Militia Act Dear Mr Chairman and Members of the Committee: Eight years ago, I got into an argument with a nonlawyer acquaintance about the Second Amendment. The Amendment, this person fervently announced, clearly protects an individual right. Not so, I argued to him, thinking him to be something of a blowhard and even a bit of a kook. Three years ago, I discovered, to my surprise and mild chagrin, that this supposed kook was entirely right. In preparing to teach a law school seminar on firearms regulation (one of the only about half a dozen such classes that I know of at US law schools), I found that the historical evidence -- much of which I set forth verbatim in the Appendix -- overwhelmingly points to one and only one conclusion: The Second Amendment does indeed secure an individual right to keep and bear arms. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights.
This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right. What about the seemingly odd two-clause construction, which some commentators have called "unusual," "special," and "nearly unique"?
During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution's Free Press Clause, for instance, reads The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject, being responsible for the abuse of that liberty .
The current Militia Act, enacted in 1956 and derived from the original 1792 Militia Act, defines the "militia" as including all able-bodied male citizens from 17 to 45;
This is quite consistent with the second clause's securing an individual right to every person. It's widely agreed that the Second Amendment right to keep and bear arms was an expanded version of a similar right in the 1688 English Bill of Rights. England, of course, didn't have states, so the English right couldn't have been a states' right; Sir William Blackstone, whose 1765 Commentaries were tremendously influential in Revolutionary Era America, described the right as a "right of the subject," an obviously individual rights characterization.
The 1790 Pennsylvania and the 1792 Kentucky Constitutions described the right as "the right of the citizens"; the 1796 Tennessee Constitution spoke of "the right of the freemen"; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and 1819 Alabama Constitution specifically referred to the right of "every citizen."
Throughout the Court's history, the Justices have mentioned the Second Amendment, usually in passing, in 27 opinions. In 22 of these 27, the Justices quoted or paraphrased only "the right of the people to keep and bear arms" language, without even mentioning the Militia Clause.
Rather, it reaffirmed that the "militia" referred to the entire armed citizenry, and considered on the merits a lawsuit that was brought by an individual (Miller), not by a state. The only Supreme Court case that leans in the collective rights direction is Lewis v United States (1980), which summarily rejected an ex-felon's claim of a right to possess a firearm, in passing citing some lower court cases that took a collective rights view.
But when the lower courts' decisions are contrary to the unanimous weight of the evidence, and do not really confront this evidence but rely almost entirely on bald assertions or on citations to other lower court decisions, it seems to me that we must respectfully say that the lower courts are mistaken. This of course is true of all individual rights: Everyone agrees that the First Amendment, the Fourth Amendment, and other provisions secure individual rights, but reasonable minds differ on exactly what speech the First Amendment protects and exactly what searches the Fourth Amendment prohibits. Thus, recognizing that the Second Amendment secures an individual right tells us little about most moderate gun controls, for instance background checks, waiting periods, or modest restrictions on the kinds of brands that may be marketed. I suspect that many would be upheld, like many modest speech restrictions are upheld despite the existence of the First Amendment.
he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power (1776).
he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).
Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion. 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. 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, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power. North Carolina: Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms." Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York. "The Right of the People" in Other Bill of Rights Provisions First Amendment: Congress shall make no law . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . Ninth Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. of the people" 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.
But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.
he right of petitioning the king, or either house of parliament, for the redress of grievances. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found i...
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