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 Documentary 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).
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, Washington, 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 Documentary 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. Documents Illustrative of the Formation of the Union of the American States, at 1026 (Washington, 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. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).
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 citizenship, 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 circumstances, 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 opportunity 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 sporting goods stores from carrying on a substantial part of their business. Also, the ordinance appears to prohibit individuals from transporting 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. Nakamura, 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 portion of the state of Idaho, whether within or without the corporate 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 portion 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 important 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 portion 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 portion 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.
* 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