"The conclusion is thus inescapable that the history, concept, and
wording of the 2nd amendment to the Constitution of the United States,
as well as its interpretation by every major commentator and court in
the 1st half- century after its ratification, indicates that what is
protected is an individual right of a private citizen to own and carry
firearms in a peaceful manner." -- Re****t of the Subcommittee on the
Constitution of the Committee on the Judiciary, United States Senate,
97th Congress, Second Session, 2/82
Entire re****t:
http://www.constitution.org/mil/rkba1982.htm
The Right to Keep and Bear Arms
RE****T of the SUBCOMMITTEE ON THE CONSTITUTION
of the
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
Second Session
February 1982
Printed for the use of the Committee on the Judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
WA****NGTON: 1982
88-618 0
For sale by the Superintendent of Do***ents,
U. S. Government Printing Office
Wa****ngton, D.C. 20402
COMMITTEE ON THE JUDICIARY
STROM THURMOND, South Carolina, Chairman
CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
Vinton DeVane Lide, Chief Counsel
Quentin Crommelin, Jr., Staff Director
SUBCOMMITTEE ON THE CONSTITUTION
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
Stephen J. Markman, Chief Counsel and Staff Director
Randall Rader, General Counsel
Peter E. Ornsby, Counsel
Robert Feidler, Minority Counsel
CONTENTS
____________
* Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate
Judiciary Committee, Subcommittee on the Constitution, from the State of
Utah
* Preface by Senator Dennis DeConcini, ranking minority member, U.S.
Senate Judiciary Committee, Subcommittee on the Constitution, from the
State of Arizona
* History: Second amendment right to "keep and bear arms"
* Appendix: Case law
* Enforcement of Federal firearms laws from the perspective of the
Second Amendment
* Other views of the second amendment:
* Does the Second Amendment mean what it says?, by David J.
Steinberg, executive director, National Council for a Responsible
Firearms policy.
* National Coalition to ban handguns, statement on the Second
Amendment, by Michael K. Beard, executive director, and Samuel S.
Fields, legal affairs coordinator, National Coalition to Ban Handguns.
* Historical Bases of the Right to Keep and Bear Arms, by David T.
Hardy, partner in the Law Firm Sando & Hardy.
* The Fourteenth Amendment and the Right to Keep and Bear Arms: The
Intent of the Framers, by Stephen P. Halbrook, PH. D., attorney and
counselor at law.
* The Second Amendment to the United States Constitution Guarantees
an Individual Right To Keep and Bear Arms, by James J. Featherstone,
Esq., General Counsel, Richard E. Gardiner, Esq., and Robert Dowlut,
Esq., Office of the General Counsel, National Rifle Association of
America.
* The Right to Bear Arms: The Development of the American
Experience, by John Levin, assistant professor, Chicago-Kent College of
Law, Illinois Institute of Technology.
* Standing Armies and Armed Citizens: An Historical Analysis of The
Second Amendment, by Roy G. Weatherup, J.D., 1972 Standford University;
member of the California Bar.
* Gun control legislation, by the Committee on Federal Legislation,
the Association of the Bar of the City of New York.
PREFACE
"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, Virginia delegate to the
Continental Congress, initiator of the Declaration of Independence, and
member of the first Senate, which passed the Bill of Rights.)
"The great object is that every man be armed . . . Everyone who is
able may have a gun." (Patrick Henry, in the Virginia Convention on the
ratification of the Constitution.)
"The advantage of being armed . . . the Americans possess over the
people of all other nations . . . Notwithstanding the military
establishments in the several Kingdoms of Europe, which are carried as
far as the public resources will bear, the governments are afraid to
trust the people with arms." (James Madison, author of the Bill of
Rights, in his Federalist Paper No. 46.)
"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." (Second Amendment to the Constitution.)
In my studies as an attorney and as a United States Senator, I have
constantly been amazed by the indifference or even hostility shown the
Second Amendment by courts, legislatures, and commentators. James
Madison would be startled to hear that his recognition of a right to
keep and bear arms, which passed the House by a voice vote without
objection and hardly a debate, has since been construed in but a single,
and most ambiguous Supreme Court decision, whereas his proposals for
freedom of religion, which he made reluctantly out of fear that they
would be rejected or narrowed beyond use, and those for freedom of
assembly, which passed only after a lengthy and bitter debate, are the
subject of scores of detailed and favorable decisions. Thomas Jefferson,
who kept a veritable armory of pistols, rifles and shotguns at
Monticello, and advised his nephew to forsake other s****ts in favor of
hunting, would be astounded to hear supposed civil libertarians claim
firearm owner****p should be restricted. Samuel Adams, a handgun owner
who pressed for an amendment stating that the "Constitution shall never
be construed . . . to prevent the people of the United States who are
peaceable citizens from keeping their own arms," would be shocked to
hear that his native state today imposes a year's sentence, without
probation or parole, for carrying a firearm without a police permit.
This is not to imply that courts have totally ignored the impact of the
Second Amendment in the Bill of Rights. No fewer than twenty-one
decisions by the courts of our states have recognized an individual
right to keep and bear arms, and a majority of these have not only
recognized the right but invalidated laws or regulations which abridged
it. Yet in all too many instances, courts or commentators have sought,
for reasons only tangentially related to constitutional history, to
construe this right out of existence. They argue that the Second
Amendment's words "right of the people" mean "a right of the state" —
apparently overlooking the impact of those same words when used in the
First and Fourth Amendments. The "right of the people" to assemble or to
be free from unreasonable searches and seizures is not contested as an
individual guarantee. Still they ignore consistency and claim that the
right to "bear arms" relates only to military uses. This not only
violates a consistent constitutional reading of "right of the people"
but also ignores that the second amendment protects a right to "keep"
arms. These commentators contend instead that the amendment's preamble
regarding the necessity of a "well regulated militia . . . to a free
state" means that the right to keep and bear arms applies only to a
National Guard. Such a reading fails to note that the Framers used the
term "militia" to relate to every citizen capable of bearing arms, and
that the Congress has established the present National Guard under its
own power to raise armies, expressly stating that it was not doing so
under its power to organize and arm the militia.
When the first Congress convened for the purpose of drafting a Bill of
Rights, it delegated the task to James Madison. Madison did not write
upon a blank tablet. Instead, he obtained a pamphlet listing the State
proposals for a bill of rights and sought to produce a briefer version
incor****ating all the vital proposals of these. His purpose was to
incor****ate, not distinguish by technical changes, proposals such as
that of the Pennsylvania minority, Sam Adams, or the New Hamp****re
delegates. Madison proposed among other rights that "That 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." I n the House, this was initially
modified so that the militia clause came before the proposal recognizing
the right. The proposals for the Bill of Rights were then trimmed in the
interests of brevity. The conscientious objector clause was removed
following objections by Elbridge Gerry, who complained that future
Congresses might abuse the exemption to excuse everyone from military
service.
The proposal finally passed the House in its present form: "A well
regulated militia, being necessary for the preservation of a free state,
the right of the people to keep and bear arms shall not be infringed."
In this form it was submitted into the Senate, which passed it the
following day. The Senate in the process indicated its intent that the
right be an individual one, for private purposes, by rejecting an
amendment which would have limited the keeping and bearing of arms to
bearing "For the common defense".
The earliest American constitutional commentators concurred in giving
this broad reading to the amendment. When St. George Tucker, later Chief
Justice of the Virginia Supreme Court, in 1803 published an edition of
Blackstone annotated to American law, he followed Blackstone's citation
of the right of the subject "of having arms suitable to their condition
and degree, and such as are allowed by law" with a citation to the
Second Amendment, "And this without any qualification as to their
condition or degree, as is the case in the British government." William
Rawle's "View of the Constitution" published in Philadelphia in 1825
noted that under the Second Amendment: "The prohibition is general. No
clause in the Constitution could by a rule of construction be conceived
to give to Congress a power to disarm the people. Such a flagitious
attempt could only be made under some general pretense by a state
legislature. But if in blind pursuit of inordinate power, either should
attempt it, this amendment may be appealed to as a restraint on both."
The Jefferson papers in the Library of Congress show that both Tucker
and Rawle were friends of, and corresponded with, Thomas Jefferson.
Their views are those of contem****aries of Jefferson, Madison and
others, and are entitled to special weight. A few years later, Joseph
Story in his "Commentaries on the Constitution" considered the right to
keep and bear arms as "the palladium of the liberties of the republic",
which deterred tyranny and enabled the citizenry at large to overthrow
it should it come to pass.
Subsequent legislation in the second Congress likewise sup****ts the
interpretation of the Second Amendment that creates an individual right.
In the Militia Act of 1792, the second Congress defined "militia of the
United States" to include almost every free adult male in the United
States. These persons were obligated by law to possess a firearm and a
minimum supply of ammunition and military equipment. This statute,
incidentally, remained in effect into the early years of the present
century as a legal requirement of gun owner****p for most of the
population of the United States. There can by little doubt from this
that when the Congress and the people spoke of a "militia", they had
reference to the traditional concept of the entire populace capable of
bearing arms, and not to any formal group such as what is today called
the National Guard. The purpose was to create an armed citizenry, which
the political theorists at the time considered essential to ward off
tyranny. From this militia, appropriate measures might create a "well
regulated militia" of individuals trained in their duties and
responsibilities as citizens and owners of firearms.
If gun laws in fact worked, the sponsors of this type of legislation
should have no difficulty drawing upon long lists of examples of crime
rates reduced by such legislation. That they cannot do so after a
century and a half of trying — that they must sweep under the rug the
southern attempts at gun control in the 1870-1910 period, the
northeastern attempts in the 1920-1939 period, the attempts at both
Federal and State levels in 1965-1976 — establishes the repeated,
complete and inevitable failure of gun laws to control serious crime.
Immediately upon assuming chairman****p of the Subcommittee on the
Constitution, I sponsored the re****t which follows as an effort to
study, rather than ignore, the history of the controversy over the right
to keep and bear arms. Utilizing the research capabilities of the
Subcommittee on the Constitution, the resources of the Library of
Congress, and the assistance of constitutional scholars such as Mary
Kaaren Jolly, Steven Halbrook, and David T. Hardy, the subcommittee has
managed to uncover information on the right to keep and bear arms which
do***ents quite clearly its status as a major individual right of
American citizens. We did not guess at the purpose of the British 1689
Declaration of Rights; we located the Journals of the House of Commons
and private notes of the Declaration's sponsors, now dead for two
centuries. We did not make suppositions as to colonial interpretations
of that Declaration's right to keep arms; we examined colonial
newspapers which discussed it. We did not speculate as to the intent of
the framers of the second amendment; we examined James Madison's drafts
for it, his handwritten outlines of speeches upon the Bill of Rights,
and discussions of the second amendment by early scholars who were
personal friends of Madison, Jefferson, and Wa****ngton while these still
lived. What the Subcommittee on the Constitution uncovered was clear —
and long lost — proof that the second amendment to our Constitution was
intended as an individual right of the American citizen to keep and
carry arms in a peaceful manner, for protection of himself, his family,
and his freedoms. The summary of our research and findings form the
first ****tion of this re****t.
In the interest of fairness and the presentation of a complete picture,
we also invited groups which were likely to oppose this recognition of
freedoms to submit their views. The statements of two associations who
replied are reproduced here following the re****t of the Subcommittee.
The Subcommittee also invited statements by Messrs. Halbrook and Hardy,
and by the National Rifle Association, whose statements likewise follow
our re****t.
When I became chairman of the Subcommittee on the Constitution, I hoped
that I would be able to assist in the protection of the constitutional
rights of American citizens, rights which have too often been eroded in
the belief that government could be relied upon for quick solutions to
difficult problems.
Both as an American citizen and as a United States Senator I repudiate
this view. I likewise repudiate the approach of those who believe to
solve American problems you simply become something other than American.
To my mind, the uniqueness of our free institutions, the fact that an
American citizen can boast freedoms unknown in any other land, is all
the more reason to resist any erosion of our individual rights. When our
ancestors forged a land "conceived in liberty", they did so with musket
and rifle. When they reacted to attempts to dissolve their free
institutions, and established their identity as a free nation, they did
so as a nation of armed freemen. When they sought to record forever a
guarantee of their rights, they devoted one full amendment out of ten to
nothing but the protection of their right to keep and bear arms against
governmental interference. Under my chairman****p the Subcommittee on the
Constitution will concern itself with a proper recognition of, and
respect for, this right most valued by free men.
Orrin G. Hatch, Chairman
Subcommittee on the Constitution
January 20, 1982
The right to bear arms is a tradition with deep roots in American
society. Thomas Jefferson proposed that "no free man shall ever be
debarred the use of arms," and Samuel Adams called for an amendment
banning any law "to prevent the people of the United States who are
peaceable citizens from keeping their own arms." The Constitution of the
State of Arizona, for example, recognizes the "right of an individual
citizen to bear arms in defense of himself or the State."
Even though the tradition has deep roots, its application to modern
America is the subject of intense controversy. Indeed, it is a
controversy into which the Congress is beginning, once again, to immerse
itself. I have personally been disappointed that so im****tant an issue
should have generally been so thinly researched and so minimally debated
both in Congress and the courts. Our Supreme Court has but once touched
on its meaning at the Federal level and that decision, now nearly a
half-century old, is so ambiguous that any school of thought can find
some sup****t in it. All Supreme Court decisions on the second
amendment's application to the States came in the last century, when
constitutional law was far different than it is today. As ranking
minority member of the Subcommittee on the Constitution, I, therefore,
welcome the effort which led to this re****t — a re****t based not only
upon the independent research of the subcommittee staff, but also upon
full and fair presentation of the cases by all interested groups and
individual scholars.
I personally believe that it is necessary for the Congress to amend the
Gun Control Act of 1968. I welcome the op****tunity to introduce this
discussion of how best these amendments might be made.
The Constitution subcommittee staff has prepared this monograph bringing
together proponents of both sides of the debate over the 1968 Act. I
believe that the statements contained herein present the arguments
fairly and thoroughly. I commend Senator Hatch, chairman of the
subcommittee, for having this excellent reference work prepared. I am
sure that it will be of great assistance to the Congress as it debates
the second amendment and considers legislation to amend the Gun Control
Act.
Dennis DeConcini,
Ranking Minority Member,
Subcommittee on the Constitution
January 20, 1982
History: Second Amendment Right to "Keep and Bear Arms"
The right to keep and bear arms as a part of English and American law
antedates not only the Constitution, but also the discovery of firearms.
Under the laws of Alfred the Great, whose reign began in 872 A.D., all
English citizens from the nobility to the peasants were obliged to
privately purchase weapons and be available for military duty. 1 This
was in sharp contrast to the feudal system as it evolved in Europe,
under which armament and military duties were concentrated in the
nobility. The body of armed citizens were known as the "fyrd".
While a great many of the Saxon rights were abridged following the
Norman conquest, the right and duty of arms possession was retained.
Under the Assize of Arms of 1181, "the whole community of freemen"
between the ages of 15 and 40 were required by law to possess certain
arms, which were arranged in pro****tion to their possessions. 2 They
were required twice a year to demonstrate to Royal officials that they
were appropriately armed. In 1253, another Assize of Arms expanded the
duty of armament to include not only freemen, but also villeins, who
were the English equivalent of serfs. Now all "citizens, burgesses, free
tenants, villeins and others from 15 to 60 years of age" were obligated
to be armed. 3 While on the Continent the villeins were regarded as
little more than animals hungering for rebellion, the English legal
system not only permitted, but affirmatively required them, to be armed.
The thirteenth century saw further definitions of this right as the long
bow, a formidable armor-piercing weapon, became increasingly the
mainstay of British national policy. In 1285, Edward I commanded that
all persons comply with the earlier Assizes and added that "anyone else
who can afford them shall keep bows and arrows." 4 The right of armament
was subject only to narrow limitations. In 1279, it was ordered that
those appearing in Parliament or other public assemblies "shall come
without all force and armor, well and peaceably". 5 In 1328, the statute
of Northampton ordered that no one use their arms in "affray of the
peace, nor to go nor ride armed by day or by night in fairs, markets,
nor in the presence of the justices or other ministers." 6 English
courts construed this ban consistently with the general right of private
armament as applying only to wearing of arms "accompanied with such
cir***stances as are apt to terrify the people." 7 In 1369, the King
ordered that the sheriffs of London require all citizens "at leisure
time on holidays" to "use in their recreation bowes and arrows" and to
stop all other games which might distract them from this practice. 8
The Tudor kings experimented with limits upon specialized weapons —
mainly crossbows and the then-new firearms. These measures were not
intended to disarm the citizenry, but on the contrary, to prevent their
being diverted from longbow practice by s****t with other weapons which
were considered less effective. Even these narrow measures were
shortlived. In 1503, Henry VII limited shooting (but not possession) of
crossbows to those with land worth 200 marks annual rental, but provided
an exception for those who "shote owt of a howse for the lawefull defens
of the same". 9 In 1511, Henry VIII increased the property requirement
to 300 marks. He also expanded the requirement of longbow owner****p,
requiring all citizens to "use and exercyse shootyng in longbowes, and
also have a bowe and arrowes contynually" in the house. 10 Fathers were
required by law to purchase bows and arrows for their sons between the
age of 7 and 14 and to train them in longbow use.
In 1514 the ban on crossbows was extended to include firearms. 11 But in
1533, Henry reduced the property qualification to 100 pounds per year;
in 1541 he limited it to possession of small firearms ("of the length of
one hole yard" for some firearms and "thre quarters of a yarde" for
others)12and eventually he repealed the entire statute by
proclamation.13 The later Tudor monarchs continued the system and
Elizabeth added to it by creating what came to be known as "train
bands", selected ****tions of the citizenry chosen for special training.
These trained bands were distinguished from the "militia", which term
was first used during the Spanish Armada crisis to designate the entire
of the armed citizenry. 14
The militia continued to be a pivotal force in the English political
system. The British historian Charles Oman considers the existence of
the armed citizenry to be a major reason for the moderation of
monarchical rule in Great Britain; "More than once he [Henry VIII] had
to restrain himself, when he discovered that the general feeling of his
subjects was against him... His 'gentlemen pensioners' and yeomen of the
guard were but a handful, and bills or bows were in every farm and
cottage". 15
When civil war broke out in 1642, the critical issue was whether the
King or Parliament had the right to control the militia. 16 The
aftermath of the civil war saw England in tem****ary control of a
military government, which repeated dissolved Parliament and authorized
its officers to "search for, and seize all arms" owned by Catholics,
opponents of the government, "or any other person whom the commissioners
had judged dangerous to the peace of this Commonwealth". 17
The military government ended with the restoration of Charles II.
Charles in turn opened his reign with a variety of repressive
legislation, expanding the definition of treason, establi****ng press
censor****p and ordering his sup****ters to form their own troops, "the
officers to be numerous, disaffected persons watched and not allowed to
assemble, and their arms seized". 18 In 1662, a Militia Act was enacted
empowering officials " to search for and seize all arms in the custody
or possession of any person or persons whom the said lieutenants or any
two or more of their deputies shall judge dangerous to the peace of the
kingdom". 19 Gunsmiths were ordered to deliver to the government lists
of all purchasers. 20 These confiscations were continued under James II,
who directed them particularly against the Irish population: "Although
the country was infested by predatory bands, a Protestant gentleman
could scarcely obtain permission to keep a brace of pistols." 21
In 1668, the government of James was overturned in a peaceful uprising
which came to be know as "The Glorious Revolution". Parliament resolved
that James had abdicated and promulgated a Declaration of Rights, later
enacted as the Bill of Rights. Before coronation, his successor William
of Orange, was required to swear to respect these rights. The debates in
the House of Commons over this Declaration of Rights focused largely
upon the disarmament under the 1662 Militia Act. One member complained
that "an act of Parliament was made to disarm all Englishmen, who the
lieutenant should suspect, by day or night, by force or otherwise — this
was done in Ireland for the sake of putting arms into Irish hands." The
speech of another is summarized as "militia bill — power to disarm all
England — now done in Ireland." A third complained "Arbitrary power
exercised by the ministry. . . . Militia — imprisoning without reason;
disarming — himself disarmed." Yet another summarized his complaints
"Militia Act — an abominable thing to disarm the nation...." 22
The Bill of Rights, as drafted in the House of Commons, simply provided
that "the acts concerning the militia are grievous to the subject" and
that "it is necessary for the public Safety that the Subjects, which are
Protestants, should provide and keep arms for the common defense; And
that the Arms which have been seized, and taken from them, be
restored." 23 The House of Lords changed this to make it a more positive
declaration of an individual right under English law: "That the subjects
which are Protestant may have arms for their defense suitable to their
conditions and as allowed by law." 24 The only limitation was on
owner****p by Catholics, who at that time composed only a few percent of
the British population and were subject to a wide variety of punitive
legislation. The Parliament subsequently made clear what it meant by
"suitable to their conditions and as allowed by law". The poorer
citizens had been restricted from owning firearms, as well as traps and
other commodities useful for hunting, by the 1671 Game Act. Following
the Bill of Rights, Parliament reenacted that statute, leaving its
operative parts unchanged with one exception — which removed the word
"guns" from the list of items forbidden to the poorer citizens. 25 The
right to keep and bear arms would henceforth belong to all English
subjects, rich and poor alike.
In the colonies, availability of hunting and need for defense led to
armament statutes comparable to those of the early Saxon times. In 1623,
Virginia forbade its colonists to travel unless the were "well armed";
in 1631 it required colonists to engage in target practice on Sunday and
"to bring their peeces to church." 26 In 1658 it required every
householder to have a functioning firearm within his house and in 1673
its laws provided that a citizen who claimed he was too poor to purchase
a firearm would have one purchased for him by the government, which
would then require him to pay a reasonable price when able to do so. 27
In Massachusetts, the first session of the legislature ordered that not
only freemen, but also indentured servants own firearms and in 1644 it
imposed a stern 6 ****lling fine upon any citizen who was not armed. 28
When the British government began to increase its military presence in
the colonies in the mid-eighteenth century, Massachusetts responded by
calling upon its citizens to arm themselves in defense. One colonial
newspaper argued that it was impossible to complain that this act was
illegal since they were "British subjects, to whom the privilege of
possessing arms is expressly recognized by the Bill of Rights" while
another argued that this "is a natural right which the people have
reserved to themselves, confirmed by the Bill of Rights, to keep arms
for their own defense". 29 The newspaper cited Blackstone's commentaries
on the laws of England, which had listed the "having and using arms for
self preservation and defense" among the "absolute rights of
individuals." The colonists felt they had an absolute right at common
law to own firearms.
Together with freedom of the press, the right to keep and bear arms
became one of the individual rights most prized by the colonists. When
British troops seized a militia arsenal in September, 1774, and
incorrect rumors that colonists had been killed spread through
Massachusetts, 60,000 citizens took up arms. 30 A few months later, when
Patrick Henry delivered his famed "Give me liberty or give me death"
speech, he spoke in sup****t of a proposition "that a well regulated
militia, composed of gentlemen and freemen, is the natural strength and
only security of a free government...." Throughout the following
revolution, formal and informal units of armed citizens obstructed
British communication, cut off foraging parties, and harassed the thinly
stretched regular forces. When seven states adopted state "bills of
rights" following the Declaration of Independence, each of those bills
of rights provided either for protection of the concept of a militia or
for an express right to keep and bear arms. 31
Following the revolution but previous to the adoption of the
Constitution, debates over militia proposals occupied a large part of
the political scene. A variety of plans were put forth by figures
ranging from George Wa****ngton to Baron von Steuben. 32 All the
proposals called for a general duty of all citizens to be armed,
although some proposals (most notably von Steuben's) also emphasized a
"select militia" which would be paid for its services and given special
training. In this respect, this "select militia" was the successor of
the "trained bands" and the predecessor of what is today the "national
guard". In the debates over the Constitution, von Steuben's proposals
were criticized as undemocratic. In Connecticut on writer complained of
a proposal that "this looks too much like Baron von Steuben's militia,
by which a standing army was meant and intended." 33 In Pennsylvania, a
delegate argued "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 will be no militia at all. When a select militia is formed,
the people in general may be disarmed." 34 Richard Henry Lee, in his
widely read pamphlet "Letters from the Federal Farmer to the
Republican" worried that the people might be disarmed "by modeling the
militia. Should one fifth or one eighth part of the people capable of
bearing arms be made into a select militia, as has been proposed, and
those the young and ardent parts of the community, possessed of little
or no property, the former will answer all the purposes of an army,
while the latter will be defenseless." He proposed that "the
Constitution ought to secure a genuine, and guard against a select
militia," adding that "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." 35
The suspicion of select militia units expressed in these passages is a
clear indication that the framers of the Constitution did not seek to
guarantee a State right to maintain formed groups similar to the
National Guard, but rather to protect the right of individual citizens
to keep and bear arms. Lee, in particular, sat in the Senate which
approved the Bill of Rights. He would hardly have meant the second
amendment to apply only to the select militias he so feared and
disliked.
Other figures of the period were of like mind. In the Virginia
convention, George Mason, drafter of the Virginia Bill of Rights,
accused the British of having plotted "to disarm the people — that was
the best and most effective way to enslave them", while Patrick Henry
observed that, "The great object is that every man be armed" and
"everyone who is able may have a gun". 36
Nor were the antifederalists, to whom we owe credit for a Bill of
Rights, alone on this account. Federalist arguments also provide a
source of sup****t for an individual rights view. Their arguments in
favor of the proposed Constitution also relied heavily upon universal
armament. The proposed Constitution had been heavily criticized for its
failure to ban or even limit standing armies. Unable to deny this
omission, the Constitution's sup****ters frequently argued to the people
that the universal armament of Americans made such limitations
unnecessary. A pamphlet written by Noah Webster, aimed at swaying
Pennsylvania toward ratification, observed.
Before a standing army can rule, the people must be disarmed; as
they are in almost every kingdom in 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 band of regular
troops that can be, on any pretense, raised in the United States. 37
In the Massachusetts convention, Sedgewick echoed the same thought,
rhetorically asking an oppressive army could be formed or "if raised,
whether they could subdue a Nation of freemen, who know how to prize
liberty, and who have arms in their hands?" 38 In Federalist Paper 46,
Madison, later author of the Second Amendment, mentioned "The advantage
of being armed, which the Americans possess over the people of all other
countries" and that "notwithstanding the military establishments in the
several kingdoms of Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the people with
arms."
A third and even more compelling case for an individual rights
perspective on the Second Amendment comes from the State demands for a
bill of rights. Numerous state ratifications called for adoption of a
Bill of Rights as a part of the Constitution. The first such call came
from a group of Pennsylvania delegates. Their proposals, which were not
adopted but had a critical effect on future debates, proposed among
other rights that "the people have a right to bear arms for the defense
of themselves and their own state, or the United States, or for the
purpose of killing game; and no law shall be passed for disarming the
people or any of them, unless for crimes committed, or a real danger of
public injury from individuals." 39 In Massachusetts, Sam Adams
unsuccessfully pushed for a ratification conditioned on adoption of a
Bill of Rights, beginning with a guarantee "That the said Constitution
shall never be construed to authorize Congress to infringe the just
liberty of the press or the rights of conscience; or to prevent the
people of the United States who are peaceable citizens from keeping
their own arms...." 40 When New Hamp****re gave the Constitution the
ninth vote needed for its passing into effect, it called for adoption of
a Bill of Rights which included the provision that "Congress shall never
disarm any citizen unless such as are or have been in actual rebellion".
41 Virginia and North Carolina thereafter called for a provision "that
the people have the 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 defense of a free state." 42
When the first Congress convened for the purpose of drafting a Bill of
Rights, it delegated the task to James Madison. Madison did not write
upon a blank tablet. Instead, he obtained a pamphlet listing the State
proposals for a Bill of Rights and sought to produce a briefer version
incor****ating all the vital proposals of these. His purpose was to
incor****ate, not distinguish by technical changes, proposals such as
that of the Pennsylvania minority, Sam Adams, and the New Hamp****re
delegates. Madison proposed among other rights that:
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." 43
In the House, this was initially modified so that the militia clause
came before the proposal recognizing the right. The proposals for the
Bill of Rights were then trimmed in the interests of brevity. The
conscientious objector clause was removed following objections by
Eldridge Gerry, who complained that future Congresses might abuse the
exemption for the scrupulous to excuse everyone from military service.
The proposal finally passed the House in its present form: "A well
regulated militia, being necessary for the security of a free state, the
right of the people to keep and bear arms, shall not be infringed." In
this form it was submitted to the Senate, which passed it the following
day. The Senate in the process indicated its intent that the right be an
individual one, for private purposes, by rejecting an amendment which
would have limited the keeping and bearing of arms to bearing "for the
common defense".
The earliest American constitutional commentators concurred in giving
this broad reading to the amendment. When St. George Tucker, later Chief
Justice of the Virginia Supreme Court, in 1803 published an edition of
Blackstone annotated to American law, he followed Blackstone's citation
of the right of the subject"of having arms suitable to their condition
and degree, and such as are allowed by law" with a citation to the
Second Amendment, "And this without any qualification as to their
condition or degree, as is the case in the British government."
44William Rawle's "View of the Constitution" published in Philadelphia
in 1825 noted that under the Second Amendment
"The prohibition is general. No clause in the Constitution could by
a rule of construction be conceived to give to Congress a power to
disarm the people. Such a flagitious attempt could only be made under
some general pretense by a state legislature. But if in blind pursuit of
inordinate power, either should at tempt it, this amendment may be
appealed to as a restraint on both." 45
The Jefferson papers in the Library of Congress show that both Tucker
and Rawle were friends of, and corresponded with, Thomas Jefferson. This
suggests that their *****sment, as contem****aries of the Constitution's
drafters, should be afforded special consideration.
Later commentators agreed with Tucker and Rawle. For instance, Joseph
Story in his "Commentaries on the Constitution" considered the right to
keep and bear arms as "the palladium of the liberties of the republic",
which deterred tyranny and enabled the citizenry at large to overthrow
it should it come to pass. 46
Subsequent legislation in the second Congress likewise sup****ts the
interpretation of the Second Amendment that creates an individual right.
In the Militia Act of 1792, the second Congress defined "militia of the
United States" to include almost every free adult male in the United
States. These persons were obligated by law to possess a firearm and a
minimum supply of ammunition and military equipment. 47 This statute,
incidentally, remained in effect into the early years of the present
century as a legal requirement of gun owner****p for most of the
population of the United States. There can by little doubt from this
that when the Congress and the people spoke of a "militia", they had
reference to the traditional concept of the entire populace capable of
bearing arms, and not to any formal group such as what is today called
the National Guard. The purpose was to create an armed citizenry, such
as the political theorists at the time considered essential to ward off
tyranny. From this militia, appropriate measures might create a "well
regulated militia" of individuals trained in their duties and
responsibilities as citizens and owners of firearms.
The Second Amendment as such was rarely litigated prior to the passage
of the Fourteenth Amendment. Prior to that time, most courts accepted
that the commands of the federal Bill of Rights did not apply to the
states. Since there was no federal firearms legislation at this time,
there was no legislation which was directly subject to the Second
Amendment, if the accepted interpretations were followed. However, a
broad variety of state legislation was struck down under state
guarantees of the right to keep and bear arms and even in a few cases,
under the Second Amendment, when it came before courts which considered
the federal protections applicable to the states. Kentucky in 1813
enacted the first carrying concealed weapon statute in the United
States; in 1822, the Kentucky Court of Appeals struck down the law as a
violation of the state constitutional protection of the right to keep
and bear arms; "And can there be entertained a reasonable doubt but the
provisions of that act im****t a restraint on the right of the citizen to
bear arms? The court apprehends it not. The right existed at the
adoption of the Constitution; it then had no limit short of the moral
power of the citizens to exercise it, and in fact consisted of nothing
else but the liberty of the citizen to bear arms." 48 On the other hand,
a similar measure was sustained in Indiana, not upon the grounds that a
right to keep and bear arms did not apply, but rather upon the notion
that a statute banning only concealed carrying still permitted the
carrying of arms and merely regulated on possible way of carrying them.
49 A few years later, the Supreme Court of Alabama upheld a similar
statute but added, "We do not desire to be understood as maintaining,
that in regulating the manner of wearing arms, the legislature has no
other limit than its own discretion. A statute which, under the pretense
of regulation, amounts to a destruction of that right, or which requires
arms to be so borne as to render them wholly useless for the purpose of
defense, would be clearly unconstitutional." 50 When the Arkansas
Supreme Court in 1842 upheld a carrying concealed weapons statute, the
chief justice explained that the statute would not "detract anything
from the power of the people to defend their free state and the
established institutions of the country. It prohibits only the wearing
of certain arms concealed. This is simply a regulation as to the manner
of bearing such arms as are specified", while the dissenting justice
proclaimed "I deny that any just or free government upon earth has the
power to disarm its citizens". 51
Sometimes courts went farther. When in 1837, Georgia totally banned the
sale of pistols (excepting the larger pistols "known and used as
horsemen's pistols" ) and other weapons, the Georgia Supreme Court in
Nunn v. State held the statute unconstitutional under the Second
Amendment to the federal Constitution. The court held that the Bill of
Rights protected natural rights which were fully as capable of
infringement by states as by the federal government and that the Second
Amendment provided "the right of the whole people, old and young, men,
women and boys, and not militia only, to keep and bear arms of every
description, and not merely such as are used by the militia, shall not
be infringed, curtailed, or broken in on, in the slightest degree; and
all this for the im****tant end to be attained: the rearing up and
qualifying of a well regulated militia, so vitally necessary to the
security of a free state." 52 Prior to the Civil War, the Supreme Court
of the United States likewise indicated that the privileges of
citizen****p included the individual right to own and carry firearms. In
the notorious Dred Scott case, the court held that black Americans were
not citizens and could not be made such by any state. This decision,
which by striking down the Missouri Compromise did so much to bring on
the Civil War, listed what the Supreme Court considered the rights of
American citizens by way of illustrating what rights would have to be
given to black Americans if the Court were to recognize them as full
fledged citizens:
It would give to persons of the negro race, who are recognized as
citizens in any one state of the Union, the right to enter every other
state, whenever they pleased. . . .and it would give them full liberty
of speech in public and in private upon all subjects upon which its own
citizens might meet; to hold public meetings upon political affairs, and
to keep and carry arms wherever they went. 53
Following the Civil War, the legislative efforts which gave us three
amendments to the Constitution and our earliest civil rights acts
likewise recognized the right to keep and bear arms as an existing
constitutional right of the individual citizen and as a right
specifically singled out as one protected by the civil rights acts and
by the Fourteenth Amendment to the Constitution, against infringement by
state authorities. Much of the reconstruction effort in the South had
been hinged upon the creation of "black militias" composed of the armed
and newly freed blacks, officered largely by black veterans of the Union
Army. In the months after the Civil War, the existing southern
governments struck at these units with the enactment of "black codes"
which either outlawed gun owner****p by blacks entirely, or imposed
permit systems for them, and permitted the confiscation of firearms
owned by blacks. When the Civil Rights Act of 1866 was debated members
both of the Senate and the House referred to the disarmament of blacks
as a major consideration. 54 Senator Trumbull cited provisions outlawing
owner****p of arms by blacks as among those which the Civil Rights Act
would prevent. 55 Senator Sulsbury complained on the other hand that if
the act were to be passed it would prevent his own state from enforcing
a law banning gun owner****p by individual free blacks. 56 Similar
arguments were advanced during the debates over the "anti-KKK act"; its
sponsor at one point explained that a section making it a federal crime
to deprive a person of "arms or weapons he may have in his house or
possession for the defense of his person, family, or property" was
"intended to enforce the well-known constitutional provisions
guaranteeing the right in the citizen 'keep and bear arms'." 57
Likewise, in the debates over the Fourteenth Amendment Congress
frequently referred to the Second Amendment as one of the rights which
it intended to guarantee against state action. 58
Following adoption of the Fourteenth Amendment, however, the Supreme
Court held that that Amendment's prohibition against states depriving
any persons of their federal "privileges and immunities" was to be given
a narrow construction. In particular, the "privileges and immunities"
under the Constitution would refer only to those rights which were not
felt to exist as a process of natural right, but which were created
solely by the Constitution. These might refer to rights such as voting
in federal elections and of interstate travel, which would clearly not
exist except by virtue of the existence of a federal government and
which could not be said to be "natural rights". 59 This paradoxically
meant that the rights which most persons would accept as the most
im****tant — those flowing from concepts of natural justice — were
devalued at the expense of more technical rights. Thus when individuals
were charged with having deprived black citizens of their right to
freedom of assembly and to keep and bear arms, by violently breaking up
a peaceable assembly of black citizens, the Supreme Court in United
States v. Cruikshank 60 held that no indictment could be properly
brought since the right "of bearing arms for a lawful purpose" is "not a
right granted by the Constitution. Neither is it in any manner dependent
upon that instrument for its existence." Nor, in the view of the Court,
was the right to peacefully assemble a right protected by the Fourteenth
Amendment: "The right of the people peaceably to assemble for lawful
purposes existed long before the adoption of the Constitution of the
United States. In fact, it is and has always been one of the attributes
of citizen****p under a free government. . . .It was not, therefore, a
right granted to the people by the Constitution." Thus the very
im****tance of the rights protected by the First and Second Amendment was
used as the basis for the argument that they did not apply to the states
under the Fourteenth Amendment. In later opinions, chiefly Presser v.
Illinois 61 andMiller v. Texas 62 the Supreme Court adhered to the view.
Cruikshank has clearly been superseded by twentieth century opinions
which hold that ****tions of the Bill of Rights — and in particular the
right to assembly with which Cruikshank dealt in addition to the Second
Amendment — are binding upon the state governments. Given the
legislative history of the Civil Rights Acts and the Fourteenth
Amendment, and the more expanded views of incor****ation which have
become accepted in our own century, it is clear that the right to keep
and bear arms was meant to be and should be protected under the civil
rights statutes and the Fourteenth Amendment against infringement by
officials acting under color of state law.
Within our own century, the only occasion upon which the Second
Amendment has reached the Supreme Court came in United States v. Miller.
63 There, a prosecution for carrying a sawed off shotgun was dismissed
before trial on Second Amendment grounds. In doing so, the court took no
evidence as to the nature of the firearm or indeed any other factual
matter. The Supreme Court reversed on procedural grounds, holding that
the trial court could not take judicial notice of the relation****p
between a firearm and the Second Amendment, but must receive some manner
of evidence. It did not formulate a test nor state precisely what
relation****p might be required. The court's statement that the amendment
was adopted "to assure the continuation and render possible the
effectiveness of such [militia] forces" and "must be interpreted and
applied with that end in view", when combined with the court's statement
that all constitutional sources "show plainly enough that the militia
comprised all males physically capable of acting in concert for the
common defense.... these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time," 64
suggests that at the very least private owner****p by a person capable of
self defense and using an ordinary privately owned firearm must be
protected by the Second Amendment. What the Court did not do in Miller
is even more striking: It did not suggest that the lower court take
evidence on whether Miller belonged to the National Guard or a similar
group. The hearing was to be on the nature of the firearm, not on the
nature of its use; nor is there a single suggestion that National Guard
status is relevant to the case.
The Second Amendment right to keep and bear arms therefore, is a right
of the individual citizen to privately possess and carry in a peaceful
manner firearms and similar arms. Such an "individual rights"
interpretation is in full accord with the history of the right to keep
and bear arms, as previously discussed. It is moreover in accord with
contem****aneous statements and formulations of the right by such
founders of this nation as Thomas Jefferson and Samuel Adams, and
accurately reflects the majority of the proposals which led up to the
Bill of Rights itself. A number of state constitutions, adopted prior to
or contem****aneously with the federal Constitution and Bill of Rights,
similarly provided for a right of the people to keep and bear arms. If
in fact this language creates a right protecting the states only, there
might be a reason for it to be inserted in the federal Constitution but
no reason for it to be inserted in state constitutions. State bills of
rights necessarily protect only against action by the state, and by
definition a state cannot infringe its own rights; to attempt to protect
a right belonging to the state by inserting it in a limitation of the
state's own powers would create an absurdity. The fact that the
contem****aries of the framers did insert these words into several state
constitutions would indicate clearly that they viewed the right as
belonging to the individual citizen, thereby making it a right which
could be infringed either by state or federal government and which must
be protected against infringement by both.
Finally, the individual rights interpretation gives full meaning to the
words chosen by the first Congress to reflect the right to keep and bear
arms. The framers of the Bill of Rights consistently used the words
"right of the people" to reflect individual rights — as when these words
were used to recognize the "right of the people" to peaceably assemble,
and the "right of the people" against unreasonable searches and
seizures. They distinguished between the rights of the people and of the
state in the Tenth Amendment. As discussed earlier, the "militia" itself
referred to a concept of a universally armed people, not to any
specifically organized unit. When the framers referred to the equivalent
of our National Guard, they uniformly used the term "select militia" and
distinguished this from "militia". Indeed, the debates over the
Constitution constantly referred to the organized militia units as a
threat to freedom comparable to that of a standing army, and stressed
that such organized units did not constituted, and indeed were
philosophically opposed to, the concept of a militia.
That the National Guard is not the "Militia" referred to in the second
amendment is even clearer today. Congress has organized the National
Guard under its power to "raise and sup****t armies" and not its power to
"Provide for the organizing, arming and disciplining the Militia". 65
This Congress chose to do in the interests of organizing reserve
military units which were not limited in deployment by the strictures of
our power over the constitutional militia, which can be called forth
only "to execute the laws of the Union, suppress insurrections and repel
invasions." The modern National Guard was specifically intended to avoid
status as the constitutional militia, a distinction recognized by 10
U.S.C. Sec. 311(a).
The conclusion is thus inescapable that the history, concept, and
wording of the second amendment to the Constitution of the United
States, as well as its interpretation by every major commentator and
court in the first half century after its ratification, indicates that
what is protected is an individual right of a private citizen to own and
carry firearms in a peaceful manner.
REFERENCES
1. Charles Hollister, Anglo-Saxon Military Institutions 11-42 (Oxford
University Press 1962); Francis Grose, Military Antiquities Respecting a
History of the British Army, Vol. I at 1-2 (London, 1812).
2. Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal History
of Medieval England. 273 (2nd. ed. New York 1980).
3. J.J. Bagley and P.B. Rowley, A Do***entary History of England. 1066-
1540, Vol. I at 155-56 (New York 1965).
4. Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley,
supra at 158.
5. 7 Ed. I c.2 (1279).
6. Statute of Northampton (2nd Edw. III c. 3).
7. Rex v. Knight, 90 Eng. Rep. 330; 87 Eng. Rep. 75 (King's Bench,
1686).
8. E. G. Heath, The Grey Goose Wing 109 (London, 1971).
9. 19 Hen. VII c. 4 (1503).
10. 3 Hen. VIII c. 13 (1511).
11. 64 Hen. VIII c. 13 (1514).
12. 33 Hen. VIII c. 6 (1514).
13. Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979)
14. Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968)
15. Charles Oman, A History of the Art of War in the Sixteenth Century
288 (New York, 1937).
16. William Blackstone, Commentaries, Vol. 2 at 412 (St. George Tucker,
ed., Philadelphia 1803).
17. "An Act for Settling the Militia," Ordinances and Acts of the
Interregnum, Vol. 2 1320 (London, HMSO 1911).
18. 8 Calender of State Papers (Domestic), Charles II, No. 188, p. 150.
19. 14 Car. II c. 3 (1662).
20. Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in
Restoration England, at 11 (Mary Ingraham Bunting Institute, Radcliffe
College 1980).
21. Thomas Macaulay, The History of England from the Accession of
Charles II, Vol. II at 137 (London, 1856).
22. Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-
1726, vol. 2 at 407-17 (London, 1778).
23. J. R. Western, Monarchy and Revolution: The English State in the
1680's, at 339 (Totowa, N.J., 1972).
24. Journal of the House of Commons from December 26, 1688 to October
26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately
enacted in this form. 1 Gul. and Mar. Sess., 2, c. 2 (1689).
25. Joyce Malcolm, supra, at 16.
26. William Hening, The Statutes at Large: Being a Collection of All the
Laws of Virginia from the First Session of the Legislature in 1619, at
pp. 127, 173-74 (New York, 1823).
27. Id.
28. William Brigham, The Compact with the Charter and Laws of the Colony
of New Plymouth, 31, 76 (Boston, 1836).
29. Oliver Dickerson, ed., Boston Under Military Rule, 61, 79 (Boston,
1936).
30. Steven Patterson, Political Parties in Revolutionary Massachusetts,
at 103 (University of Wisconsin Press, 1973).
31. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).
32. The most extensive studies of these militia proposals are John
Macauly Palmer, Wa****ngton, Lincoln, Wilson: Three War Statesmen (New
York, 1930); Frederick Stern, Citizen Army (New York, 1957); John Mahon,
The American Militia: Decade of Decision 1789-1800 (Univ. of Florida,
1960).
33. Merrill Jensen, ed., The Do***entary of History of the Ratification
of the Constitution, vol. 3 at 378 (Madison, Wisc.)
34. Id., vol. 2 at 508.
35. Walter Bennet, ed., Letters from the Federal Farmer to the
Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).
36. Debates and other Proceedings of the Convention of Virginia, . . .
taken in shorthand by David Robertson of Petersburg, at 271, 275 (2nd
ed. Richmond, 1805).
37. Noah Webster, "An Examination into the Leading Principles of the
Federal States, at 56 (New York, 1888).
38. Jonathan Elliot, ed., Debates in the Several State Conventions on
the Adoption of the Federal Constitution, vol. 2 at 97 (2nd ed., 1888).
39. Merril Jensen, supra, vol. 2 at 597-98.
40. Debates and Proceeding at the Convention of the Commonwealth of
Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850); 2 B.
Schwartz, the Bill of Rights 675 (1971).
41. Do***ents Illustrative of the Formation of the Union of the American
States, at 1026 (Wa****ngton, D.C., GPO, 1927).
42. Id. at 1030.
43. Annals of Congress 434 (1789).
44. St. George Tucker, ed., Blackstone's Commentaries, Volume 1 at 143
n. 40, 41 (Philadelphia, 1803).
45. William Rawle, A View of the Constitution 125-6 (2nd ed.,
Philadelphia, 1803).
46. Joseph Story, Commentaries on the Constitution, vol. 2 at 746
(1833).
47. Act of May 8, 1792; Second Cong., First Session, ch. 33.
48. Bliss vs. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822).
49. State v. Mitchell, (3 Black.) 229.
50. State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).
51. State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas
Constitutional provision at issue was narrower than the second
amendment, as it protected keeping and bearing arms "for the common
defense." Id. at 34.
52. Nunn v. State, 1 Ga. 243, 251 (1846).
53. Dred Scott v. Sanford, 60 U.S. 691, 705.
54. The most comprehensive work in this field of constitutional law is
Steven Halbrook, The Jurisprudence of the Second and Fourteenth
Amendments (Institute for Humane Studies, Menlo Park, California, 1979),
reprinted in 4 George Mason L. Rev. 1 (1981).
55. Cong. Globe, 39th Congress, 1st Sess., pt. 1, p. 474 (Jan. 29,
1866).
56. Id. at 478.
57. H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871).
58. See generally Halbrook, supra, at 42-62.
59. Slaughterhouse Cases, 83 U.S. 36 (L873).
60. United States v. Cruikshank, 92 U.S. 542 (1876).
61. Presser v. Illinois, 116 U.S. 252 (1886).
62. Miller v. Texas, 153 U.S. 535 (1894).
63. United States v. Miller, 307 U.S. 175 (1939).
64. Id. at 178, 179.
65. H.R. Re****t No. 141, 73d Cong., 1st sess. at 2-5 (1933).
APPENDIX
Case Law
The United States Supreme Court has only three times commented upon the
meaning of the second amendment to our constitution. The first comment,
in Dred Scott, indicated strongly that the right to keep and bear arms
was an individual right; the Court noted that, were it to hold blacks to
be entitled to equality of citizen****p, they would be entitled to keep
and carry arms wherever they went. The second, in Miller, indicated that
a court cannot take judicial notice that a short-barrelled shotgun is
covered by the second amendment — but the Court did not indicate that
National Guard status is in any way required for protection by that
amendment, and indeed defined "militia" to include all citizens able to
bear arms. The third, a footnote in Lewis v. United States, indicated
only that "these legislative restrictions on the use of firearms" — a
ban on possession by felons — were permissable [sic]. But since felons
may constitutionally be deprived of many of the rights of citizens,
including that of voting, this dicta reveals little. These three
comments constitute all significant explanations of the scope of the
second amendment advanced by our Supreme Court. The case of Adam v.
Williams has been cited as contrary to the principle that the second
amendment is an individual right. In fact, that reading of the opinion
comes only in Justice Douglas's dissent from the majority ruling of the
Court.
The appendix which follows represents a listing of twenty-one American
decisions, spanning the period from 1822 to 1981, which have analyzed
right to keep and bear arms provisions in the light of statutes ranging
from complete bans on handgun sales to bans on carrying of weapons to
regulation of carrying by permit systems. Those decisions not only
explained the nature of such a right, but also struck down legislative
restrictions as violative of it, are designated by asterisks.
20TH CENTURY CASES
1. State v. Blocker, 291 Or. 255, — — — P. 2d — — — (1981).
"The statue is written as a total proscription of the mere
possession of certain weapons, and that mere possession, insofar as a
billy is concerned, is constitutionally protected."
"In these cir***stances, we conclude that it is proper for us to
consider defendant's 'overbreadth' attack to mean that the statute swept
so broadly as to infringe rights that it could not reach, which in the
setting means the right to possess arms guaranteed by sec 27."
2. State v. Kessler, 289 Or. 359, 614 P. 2d 94, at 95, at 98 (1980).
"We are not unmindful that there is current controversy over the
wisdom of a right to bear arms, and that the original motivations for
such a provision might not seem compelling if debated as a new issue.
Our task, however, in construing a constitutional provision is to
respect the principles given the status of constitutional guarantees and
limitations by the drafters; it is not to abandon these principles when
this fits the needs of the moment."
"Therefore, the term 'arms' as used by the drafters of the
constitutions probably was intended to include those weapons used by
settlers for both personal and military defense. The term 'arms' was not
limited to firearms, but included several handcarried weapons commonly
used for defense. The term 'arms' would not have included cannon or
other heavy ordnance not kept by militiamen or private citizens."
3. Motley v. Kellogg, 409 N.E. 2d 1207, at 1210 (Ind. App. 1980) (motion
to transfer denied 1-27-1981).
"[N]ot making applications available at the chief's office
effectively denied members of the community the op****tunity to obtain a
gun permit and bear arms for their self-defense."
4. Schubert v. DeBard, 398 N.E. 2d 1339, at 1341 (Ind. App. 1980)
(motion to transfer denied 8-28-1980).
"We think it clear that our constitution provides our citizenry the
right to bear arms for their self- defense."
5. Taylor v. McNeal, 523 S.W. 2d 148, at 150 (Mo. App. 1975)
"The pistols in question are not contraband. * * * Under Art. I, sec
23, Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and
bear arms in defense of his home, person, and property, with the
limitation that this section shall not justify the wearing of concealed
arms."
6. City of Lakewood v. Pillow, 180 Colo. 20, 501 P. 2d 744, at 745 (en
banc 1972).
"As an example, we note that this ordinance would prohibit
gunsmiths, pawnbrokers and s****ting goods stores from carrying on a
substantial part of their business. Also, the ordinance appears to
prohibit individuals from trans****ting guns to and from such places of
business. Furthermore, it makes it unlawful for a person to possess a
firearm in a vehicle or in a place of business for the purpose of self-
defense. Several of these activities are constitutionally protected.
Colo. Const. art. II, sec 13."
7. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P. 2d 737, at 738 (N.M.
App. 1971).
"It is our opinion that an ordinance may not deny the people the
constitutionally guaranteed right to bear arms, and to that extent the
ordinance under consideration is void."
8. State v. Nickerson, 126 Mt. 157, 247 P. 2d 188, at 192 (1952).
"The law of this jurisdiction accords to the defendant the right to
keep and bear arms and to use same in defense of his own home, his
person and property."
9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950).
"The second amendment to the constitution of the United States
provides the right of the people to keep and bear arms shall not be
infringed. This of course does not prevent the enactment of a law
against carrying concealed weapons, but it does indicate it should be
kept in mind, in the construction of a statue of such character, that it
is aimed at persons of criminal instincts, and for the prevention of
crime, and not against use in the protection of person or property."
10. People v. ****amura, 99 Colo. 262, at 264, 62 P. 2d 246 (en banc
1936).
"It is equally clear that the act wholly disarms aliens for all
purposes. The state . . . cannot disarm any class of persons or deprive
them of the right guaranteed under section 13, article II of the
Constitution, to bear arms in defense of home, person and property. The
guaranty thus extended is meaningless if any person is denied the right
to possess arms for such protection."
11. Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d
678 (1928).
"There is no qualification of the prohibition against the carrying
of a pistol in the city ordinance before us but it is made unlawful 'to
carry on or about the person any pistol,' that is, any sort of pistol in
any sort of manner. *** [W]e must accordingly hold the provision of this
ordinance as to the carrying of a pistol invalid."
12. People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922).
"The provision in the Constitution granting the right to all persons
to bear arms is a limitation upon the right of the Legislature to enact
any law to the contrary. The exercise of a right guaranteed by the
Constitution cannot be made subject to the will of the sheriff."
13. State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).
"We are of the opinion, however, that 'pistol' ex vi termini is
properly included within the word 'arms,' and that the right to bear
such arms cannot be infringed. The historical use of pistols as 'arms'
of offense and defense is beyond controversy."
"The maintenance of the right to bear arms is a most essential one
to every free people and should not be whittled down by technical
constructions."
14. State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903).
"The people of the state have a right to bear arms for the defense
of themselves and the state. *** The result is that Ordinance No. 10, so
far as it relates to the carrying of a pistol, is inconsistent with and
repugnant to the Constitution and the laws of the state, and it is
therefore to that extent, void."
15. In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902).
"The second amendment to the federal constitution is in the
following language: '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 language of section 11, article I of the
constitution of Idaho, is as follows: 'The people have the right to bear
arms for their security and defense, but the legislature shall regulate
the exercise of this right by law.' Under these constitutional
provisions, the legislature has no power to prohibit a citizen from
bearing arms in any ****tion of the state of Idaho, whether within or
without the cor****ate limits of cities, towns, and villages."
19TH CENTURY CASES
16. Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878).
"If cowardly and dishonorable men sometimes shoot unarmed men with
army pistols or guns, the evil must be prevented by the penitentiary and
gallows, and not by a general deprivation of constitutional privilege."
17. Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878).
"We believe that ****tion of the act which provides that, in case of
conviction, the defendant shall forfeit to the county the weapon of
weapons so found on or about his person is not within the scope of
legislative authority. * * * One of his most sacred rights is that of
having arms for his own defence and that of the State. This right is one
of the surest safeguards of liberty and self-preservation."
18. Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871).
"The passage from Story shows clearly that this right was intended,
as we have maintained in this opinion, and was guaranteed to and to be
exercised and enjoyed by the citizen as such, and not by him as a
soldier, or in defense solely of his political rights."
19. Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
"The right of the people to bear arms shall not be infringed." The
right of the whole people, old and young, men, women and boys, and not
militia only, to keep and bear arms of every description, and not such
merely as are used by the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree; and all this for the im****tant
end to be attained: the rearing up and qualifying a well- regulated
militia, so vitally necessary to the security of a free State."
20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833).
"But suppose it to be assumed on any ground, that our ancestors
adopted and brought over with them this English statute, [the statute of
Northampton,] or ****tion of the common law, our constitution has
completely abrogated it; it says, 'that the freemen of this State have a
right to keep and bear arms for their common defence.' Article II, sec.
26. * * * By this clause of the constitution, an express power is given
and secured to all the free citizens of the State to keep and bear arms
for their defence, without any qualification whatever as to their kind
or nature; and it is conceived, that it would be going much too far, to
impair by construction or abridgement a constitutional privilege, which
is so declared; neither, after so solemn an instrument hath said the
people may carry arms, can we be permitted to impute to the acts thus
licensed, such a necessarily consequent operation as terror to the
people to be incurred thereby; we must attribute to the framers of it,
the absence of such a view."
21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am.
Dec. 251 (1822).
"For, in principle, there is no difference between a law prohibiting
the wearing concealed arms, and a law forbidding the wearing such as are
exposed; and if the former be unconstitutional, the latter must be so
likewise."
"But it should not be forgotten, that it is not only a part of the
right that is secured by the constitution; it is the right entire and
complete, as it existed at the adoption of the constitution; and if any
****tion of that right be impaired, immaterial how small the part may be,
and immaterial the order of time at which it be done, it is equally
forbidden by the constitution."
The following represents a list of twelve scholarly articles which have
dealt with the subject of the right to keep and bear arms as reflected
in the second amendment to the Constitution of the United States. The
scholars who have undertaken this research range from professors of law,
history and philosophy to a United States Senator. All have concluded
that the second amendment is an individual right protecting American
citizens in their peaceful use of firearms.
BIBLIOGRAPHY
* Hays, The Right to 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)
* Whisker, Historical Development and Subsequent Erosion of the
Right to Keep and Bear Arms, 78 W. Va. L. R. 171 (1976)
* Caplan, Restoring the Balance: The Second Amendment Revisited, 5
Fordham Urban L. J. 31 (1976)
* Caplan, Handgun Control: Constitutional or Unconstitutional?, 10
N.C. Central L. J. 53 (1979)
* Cantrell, The Right to Bear Arms, 53 Wis Bar Bull. 21 (Oct. 1980)
* Halbrook, The Jurisprudence of the Second and Fourteenth
Amendments, 4 Geo. Mason L. Rev. 1 (1981)
ENFORCEMENT OF FEDERAL FIREARMS LAWS FROM THE
PERSPECTIVE OF THE SECOND AMENDMENT
Federal involvement in firearms possession and transfer was not
significant prior to 1934, when the National Firearms Act was adopted.
The National Firearms Act as adopted covered only fully automatic
weapons (machine guns and submachine guns) and rifles and shotguns whose
barrel length or overall length fell below certain limits. Since the Act
was adopted under the revenue power, sale of these firearms was not made
subject to a ban or permit system. Instead, each transfer was made
subject to a $200 excise tax, which must be paid prior to transfer; the
identification of the parties to the transfer indirectly accomplished a
registration purpose.
The 1934 Act was followed by the Federal Firearms Act of 1938, which
placed some limitations upon sale of ordinary firearms. Persons engaged
in the business of selling those firearms in interstate commerce were
required to obtain a Federal Firearms License, at an annual cost of $1,
and to maintain records of the name and address of persons to whom they
sold firearms. Sales to persons convicted of violent felonies were
prohibited, as were interstate ****pments to persons who lacked the
permits required by the law of their state.
Thirty years after adoption of the Federal Firearms Act, the Gun Control
Act of 1968 worked a major revision of federal law. The Gun Control Act
was actually a composite of two statutes. The first of these, adopted as
****tions of the Omnibus Crime and Safe Streets Act, imposed limitations
upon im****ted firearms, expanded the requirement of dealer licensing to
cover anyone "engaged in the business of dealing" in firearms, whether
in interstate or local commerce, and expanded the recordkeeping
obligations for dealers. It also imposed a variety of direct limitations
upon sales of handguns. No transfers were to be permitted between
residents of different states (unless the recipient was a federally
licensed dealer), even where the transfer was by gift rather than sale
and even where the recipient was subject to no state law which could
have been evaded. The category of persons to whom dealers could not sell
was expanded to cover persons convicted of any felony (other than
certain business-related felonies such as antitrust violations), persons
subject to a mental commitment order or finding of mental incompetence,
persons who were users of marijuana and other drugs, and a number of
other categories. Another title of the Act defined persons who were
banned from possessing firearms. Paradoxically, these cl***** were not
identical with the list of cl***** prohibited from purchasing or
receiving firearms.
The Omnibus Crime and Safe Streets Act was passed on June 5, 1968, and
set to take effect in December of that year. Barely two weeks after its
passage, Senator Robert F. Kennedy was assassinated while campaigning
for the presidency. Less that a week after his death, the second bill
which would form part of the Gun Control Act of 1968 was introduced in
the House. It was re****ted out of Judiciary ten days later, out of Rules
Committee two weeks after that, and was on the floor barely a month
after its introduction. the second bill worked a variety of changes upon
the original Gun Control Act. Most significantly, it extended to rifles
and shotguns the controls which had been imposed solely on handguns,
extended the class of persons prohibited from possessing firearms to
include those who were users of marijuana and certain other drugs,
expanded judicial review of dealer license revocations by mandating a de
novo hearing once an appeal was taken, and permitted interstate sales of
rifles and shotguns only where the parties resided in contiguous states,
both of which had enacted legislation permitting such sales. Similar
legislation was passed by the Senate and a conference of the Houses
produced a bill which was essentially a modification of the House
statute. This became law before the Omnibus Crime Control and Safe
Streets Act, and was therefore set for the same effective date.
Enforcement of the 1968 Act was delegated to the Department of the
Treasury, which had been responsible for enforcing the earlier gun
legislation. This responsibility was in turn given to the Alcohol and
Tobacco Tax Division of the Internal Revenue Service. This division had
traditionally devoted itself to the pursuit of illegal producers of
alcohol; at the time of enactment of the Gun Control Act, only 8.3
percent of its arrests were for firearms violations. Following enactment
of the Gun Control Act the Alcohol and Tobacco Tax Division was retitled
the Alcohol, Tobacco and Firearms Division of the IRS. By July, 1972 it
had nearly doubled in size and became a complete Treasury bureau under
the name of Bureau of Alcohol, Tobacco and Firearms.
The mid-1970's saw rapid increases in sugar prices, and these in turn
drove the bulk of the "moon****ners" out of business. Over 15,000 illegal
distilleries had been raided in 1956; but by 1976 this had fallen to a
mere 609. The BATF thus began to devote the bulk of its efforts to the
area of firearms law enforcement.
Complaint regarding the techniques used by the Bureau in an effort to
generate firearms cases led to hearings before the Subcommittee on
Treasury, Post Office, and General Appropriations of the Senate
Appropriations Committee in July 1979 and April 1980, and before the
Subcommittee on the Constitution of the Senate Judiciary Committee in
October 1980. At these hearings evidence was received from various
citizens who had been charged by BATF, from experts who had studied the
BATF, and from officials of the Bureau itself.
Based upon these hearings, it is apparent that enforcement tactics made
possible by current federal firearms laws are constitutionally, legally,
and practically reprehensible. Although Congress adopted the Gun Control
Act with the primary object of limiting access of felons and high-risk
groups to firearms, the overbreadth of the law has led to neglect of
precisely this area of enforcement. For example the Subcommittee on the
Constitution received correspondence from two members of the Illinois
Judiciary, dated in 1980, indicating that they had been totally unable
to persuade BATF to accept cases against felons who were in possession
of firearms including sawed-off shotguns. The Bureau's own figures
demonstrate that in recent years the percentage of its arrests devoted
to felons in possession and persons knowingly selling to them have
dropped from 14 percent down to 10 percent of their firearms cases. To
be sure, genuine criminals are sometimes prosecuted under other sections
of the law. Yet, subsequent to these hearings, BATF stated that 55
percent of its gun law prosecutions overall involve persons with no
record of a felony conviction, and a third involve citizens with no
prior police contact at all.
The Subcommittee received evidence that the BATF has primarily devoted
its firearms enforcement efforts to the apprehension, upon technical
malum prohibitum charges, of individuals who lack all criminal intent
and knowledge. Agents anxious to generate an impressive arrest and gun
confiscation quota have repeatedly enticed gun collectors into making a
small number of sales — often as few as four — from their personal
collections. Although each of the sales was completely legal under state
and federal law, the agents then charged the collector with having
"engaged in the business" of dealing in guns without the required
license. Since existing law permits a felony conviction upon these
charges even where the individual has no criminal knowledge or intent
numerous collectors have been ruined by a felony record carrying a
potential sentence of five years in federal prison. Even in cases where
the collectors secured acquittal, or grand juries failed to indict, or
prosecutors refused to file criminal charges, agents of the Bureau have
generally confiscated the entire collection of the potential defendant
upon the ground that he intended to use it in that violation of the law.
In several cases, the agents have refused to return the collection even
after acquittal by jury.
The defendant, under existing law is not entitled to an award of
attorney's fees, therefore, should he secure return of his collection,
an individual who has already spent thousands of dollars establi****ng
his innocence of the criminal charges is required to spend thousands
more to civilly prove his innocence of the same acts, without hope of
securing any redress. This of course, has given the enforcing agency
enormous bargaining power in refusing to return confiscated firearms.
Evidence received by the Subcommittee related the confiscation of a
shotgun valued at $7,000. Even the Bureau's own valuations indicate that
the value of firearms confiscated by their agents is over twice the
value which the Bureau has claimed is typical of "street guns" used in
crime. In recent months, the average value has increased rather than
decreased, indicating that the reforms announced by the Bureau have not
in fact redirected their agents away from collector's items and toward
guns used in crime.
The Subcommittee on the Constitution has also obtained evidence of a
variety of other misdirected conduct by agents and supervisors of the
Bureau. In several cases, the Bureau has sought conviction for supposed
technical violations based upon policies and interpretations of law
which the Bureau had not published in the Federal Register, as required
by 5 U.S.C. Sec 552. For instance, beginning in 1975, Bureau officials
apparently reached a judgment that a dealer who sells to a legitimate
purchaser may nonetheless be subject to prosecution or license
revocation if he knows that that individual intends to transfer the
firearm to a nonresident or other unqualified purchaser. This position
was never published in the Federal Register and is indeed contrary to
indications which Bureau officials had given Congress, that such sales
were not in violation of existing law. Moreover, BATF had informed
dealers that an adult purchaser could legally buy for a minor, barred by
his age from purchasing a gun on his own. BATF made no effort to suggest
that this was applicable only where the barrier was one of age. Rather
than informing the dealers of this distinction, Bureau agents set out to
produce mass arrests upon these "straw man" sale charges, sending out
undercover agents to entice dealers into transfers of this type. The
first major use of these charges, in South Carolina in 1975, led to 37
dealers being driven from business, many convicted on felony charges.
When one of the judges informed Bureau officials that he felt dealers
had not been fairly treated and given information of the policies they
were expected to follow, and refused to permit further prosecutions
until they were informed, Bureau officials were careful to inform only
the dealers in that one state and even then complained in internal
memoranda that this was interfering with the creation of the cases. When
BATF was later requested to place a warning to dealers on the front of
the Form 4473, which each dealer executes when a sale is made, it
instead chose to place the warning in fine print upon the back of the
form, thus further concealing it from the dealer's sight.
The Constitution Subcommittee also received evidence that the Bureau has
formulated a requirement, of which dealers were not informed that
requires a dealer to keep official records of sales even from his
private collection. BATF has gone farther than merely failing to publish
this requirement. At one point, even as it was prosecuting a dealer on
the charge (admitting that he had no criminal intent), the Director of
the Bureau wrote Senator S. I. Hayakawa to indicate that there was no
such legal requirement and it was completely lawful for a dealer to sell
from his collection without recording it. Since that date, the Director
of the Bureau has stated that that is not the Bureau's position and that
such sales are completely illegal; after making that statement, however,
he was quoted in an interview for a magazine read primarily by licensed
firearms dealers as stating that such sales were in fact legal and
permitted by the Bureau. In these and similar areas, the Bureau has
violated not only the dictates of common sense, but of 5 U.S.C. Sec 552,
which was intended to prevent "secret lawmaking" by administrative
bodies.
These practices, amply do***ented in hearings before this Subcommittee,
leave little doubt that the Bureau has disregarded rights guaranteed by
the constitution and laws of the United States.
It has trampled upon the second amendment by chilling exercise of the
right to keep and bear arms by law-abiding citizens.
It has offended the fourth amendment by unreasonably searching and
seizing private property.
It has ignored the Fifth Amendment by taking private property without
just compensation and by entrapping honest citizens without regard for
their right to due process of law.
The rebuttal presented to the Subcommittee by the Bureau was utterly
unconvincing. Richard Davis, speaking on behalf of the Treasury
Department, asserted vaguely that the Bureau's priorities were aimed at
prosecuting willful violators, particularly felons illegally in
possession, and at confiscating only guns actually likely to be used in
crime. He also asserted that the Bureau has recently made great strides
toward achieving these priorities. No do***entation was offered for
either of these assertions. In hearings before BATF's Appropriations
Subcommittee, however, expert evidence was submitted establi****ng that
approximately 75 percent of BATF gun prosecutions were aimed at ordinary
citizens who had neither criminal intent nor knowledge, but were enticed
by agents into unknowing technical violations. (In one case, in fact,
the individual was being prosecuted for an act which the Bureau's acting
director had stated was perfectly lawful.) In those hearings, moreover,
BATF conceded that in fact (1) only 9.8 percent of their firearm arrests
were brought on felons in illicit possession charges; (2) the average
value of guns seized was $116, whereas BATF had claimed that "crime
guns" were priced at less than half that figure; (3) in the months
following the announcement of their new "priorities", the percentage of
gun prosecutions aimed at felons had in fact fallen by a third, and the
value of confiscated guns had risen. All this indicates that the
Bureau's vague claims, both of focus upon gun-using criminals and of
recent reforms, are empty words.
In light of this evidence, reform of federal firearm laws is necessary
to protect the most vital rights of American citizens. Such legislation
is embodied in S. 1030. That legislation would require proof of a
willful violation as an element of a federal gun prosecution, forcing
enforcing agencies to ignore the easier technical cases and aim solely
at the intentional breaches. It would restrict confiscation of firearms
to those actually used in an offense, and require their return should
the owner be acquitted of the charges. By providing for award of
attorney's fees in confiscation cases, or in other cases if the judge
finds charges were brought without just basis or from improper motives,
this proposal would be largely self-enforcing. S. 1030 would enhance
vital protection of constitutional and civil liberties of those
Americans who choose to exercise their Second Amendment right to keep
and bear arms.
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