A History: The 2nd Amendment

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http://www.guncite.com/journals/vandhist.html <br />
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THE HISTORY OF THE SECOND AMENDMENT <br />
David E. Vandercoy

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James I, the first Stuart monarch, took the Crown in 1603. An agitated House of Commons immediately confronted him. James had proclaimed that individuals elected to Parliament could be seated only if...

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James responded by having his Judges find that the laws of England were the King's laws and the King could dispense with them.[89] The King replaced Protestants with Catholics at high government posts, including the military; he then placed 13,000 men of his army outside London.[90] In 1688, James's son-in-law, William of Orange, a Protestant, landed in England with a large Dutch army. James's army deserted him and he fled to France.

William and Mary became sovereigns in 1689. Parliament restricted their powers by adopting the Declaration of Rights.[91] William and Mary were required to accept the rights enumerated in the Declaration as the rights of their subjects and to rule in accordance with Parliament's statutes.[92] The Declaration recited the abuses by James, including the raising and keeping of a standing army without Parliament's consent, quartering of troops in private homes, and disarming Protestant subjects. The declaration set forth the positive right of Protestant subjects to have arms for their defense, suitable to their conditions, and as allowed by law.[93]

The Declaration did not create a new right. The English had been able to possess individual arms for centuries and at times were required to keep them. Nevertheless, the debates attending the Declaration make clear that Parliament thought the right should be recognized as a right of individuals. The Whigs in the Convention Parliament were the most outspoken in favor of the right to (p.1018)possess arms to resist tyranny.[94] The members were aggrieved that the King and a prior Parliament had attempted to, and did, disarm some of the English subjects.[95] An early draft of the grievance portion of the Declaration recited that "the Acts concerning the militia are grievous to the subjects,"[96] a reference to those portions of the civil war era militia acts that permitted the militia to disarm those suspected of disloyalty.

To address this grievance, the draft stating the positive right first provided: "[I]t is necessary for the Publick Safety, that the Subjects which are Protestants, should provide and keep Arms for their common Defence. And that the Arms which have been seized, and taken from them, be restored."[97] This version stated a collective purpose for the right, public safety, and common defense. A second version followed that deleted the reference to the public safety but retained the collective purpose language: common defense. It altered the "should keep" language to "may keep." This version read, "[T]hat the Subjects, which are Protestants, may provide and keep Arms, for their common Defence."[98]

The final version came after a compromise with the House of Lords. A prior Parliament, during the civil war era, had not only permitted its militia, a collective organization, to disarm others, but had also abolished the House of Lords. The House of Lords apparently objected to the "collective purpose" language in the Commons draft. It secured new language that completely eliminated the collective purpose--common defense language.[99] The complete text, on this point, as adopted, reads "[T]hat the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."[100]

Several other points are important regarding this article of the declaration. First, the language that Protestant subjects may have arms "as allowed by law" was not construed as a limitation on possession, but rather a limitation on (p.1019)use.[101] Parliament enacted a new game or hunting act that deleted firearms from the list of hunting equipment that could not be possessed except by the wealthy.[102] Arms could be confiscated if used to poach game, but possession of arms was protected as a matter of right.[103] However, the phrase "as allowed by law" highlights that what Parliament giveth, Parliament could take away. With or without the phrase, Parliament's Declaration of Rights only protected those rights from abuse by the monarchy. In 1689, like today, the non-constitutional English system permits the current Parliament to abrogate the rights granted by a prior Parliament.

Second, the English Declaration of Rights states "that the subjects which are Protestants may have arms."[104] However, contemporaneous legislation in 1689 made clear that while Catholics were not permitted to stockpile weapons, they were allowed to possess arms for defense of their house or person.[105] Last, although the Declaration speaks solely in terms of an individual right to bear arms, a review of eighteenth-century literature indicates that the intended purpose was to provide both an individual and a collective right with the collective right being the more important.[106] A true collective right, however, could only be protected by guaranteeing the individual right.

Two points should be addressed on this issue. First, during the civil war era and thereafter, both Parliament and the monarchy had proclaimed themselves, to the exclusion of the other, as the protector of the subjects' well-being. To facilitate the collective rights of the subjects, each had attempted to disarm the others' supporters. Thus, the collective organization intended to protect all subjects' liberty, the militia, became an instrument of governmental tyranny. The collective rights of all subjects could not be guaranteed if the government had the power to vest enforcement in one collective organization because the government controlled the organization. Accordingly, the government's power to appoint the officers of the militia and select its membership meant that the militia could become an instrument of the government, not the people. Thus, the people's collective rights were enforceable only if the power of enforcement, force of arms, was universally dispersed.(p.1020)

III. The English Theorists
Accordingly, when Blackstone spoke of the rights of persons, he defined such rights as being either: 1) absolute, that is belonging to the person whether out of society or in it; or 2) relative, meaning the right is an incident of membership in society.[107] Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation.[108] Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.[109]

In addition to Blackstone, the views of other seventeenth- and eighteenth-century English political theorists clearly influenced the political views of the colonists who ultimately would revolt and establish a new nation.[110] American political thought was strongly linked to "republican" thought in England.[111] The essence of republican thought was that a citizenry could rule itself without the paternal guiding hand of a monarch.[112]

One of the leading republican theorists was James Harrington.[113] Harrington's beliefs were simple and direct. He believed that ownership of land gave people independence.[114] This independence would cultivate rights now (p.1021)considered fundamental, including the right of self-government. Harrington also believed that the actual independence attained would be a function of the citizen's ability to bear arms and use them to defend his rights.[115] He sought support from the works of Machiavelli, who proclaimed that there was a direct relationship between good arms and good laws.[116]

A central thesis of Harrington's republican theory is that an armed population is a popular government's best protection against its enemies, both foreign and domestic.[117] While Harrington and subsequent republicans argued the virtue of armed citizenry, they warned that standing armies were to be avoided at almost all cost because such armies become the government's instrument to retain power.[118] Rather, a populace that possessed the land and arms inevitably would retain political power as well as serving as the best defense against the popular government's enemies.

These views became tenets of early republican or whig political theorists during the eighteenth century.[119] Henry Neville argued that by arming the people, democracies could obtain incomparable advantage over neighboring aristocracies because the aristocracies could not arm their populace for fear they would seize the government.[120] Robert Molesworth praised the armed and free Swiss, as well as his own brethren, the English, as examples of the virtue of arming the people as individuals.[121](p.1022)

IV. The Politics of the Founding Fathers
The English republican views on the relationship between arms and democracy profoundly influenced the views of the founding fathers.[122] Both the Federalists, those promoting a strong central government, and the Antifederalists, those believing that liberties including the right of self-rule would be protected best by preservation of local autonomy, agreed that arms and liberty were inextricably linked.[123]

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IV. The Politics of the Founding Fathers
The English republican views on the relationship between arms and democracy profoundly influenced the views of the founding fathers.[122] Both the Federalists, those promoting a strong central government, and the Antifederalists, those believing that liberties including the right of self-rule would be protected best by preservation of local autonomy, agreed that arms and liberty were inextricably linked.[123]

The first discussion in which these views were articulated occurred in the context of Article 1, section 8 of the Constitution concerning the powers of Congress to raise a standing army and its power over the militia. As initially proposed, Congress was to be provided the power to raise armies.[124] Objections were raised that there was no check against standing armies in time of peace.[125] The debate focused on how to avoid the dangers of a standing army; there was no dispute that a standing army posed a significant threat to the liberty of the people.[126] The dilemma was that some type of national army would be necessary in time of war, but the results of waiting until war occurred to raise a national army could be disastrous.[127]

The solution adopted was two-fold. First, Congress would have the power to raise an army but no appropriation of money for that use could be for more (p.1023)than two years.[128] Because the people controlled the House of Representatives and the Senate, and Congress controlled the purse, the people were given an effective check against the dangers of a standing army. The second check against the dangers of a standing army was provided by the existence of the militia. Again, however, the necessity of providing for the common defense had to be satisfied while guarding against the national government's abuse of power.

If the danger of a standing army was to be limited, the militia, which was then under the control of the states, must be available to meet national emergencies until an adequate standing army could be raised. Thus, the national government needed the power to call upon the militia. Conversely, the existence of a militia independent of federal control was deemed necessary as a check on the standing army which Congress was authorized to raise.[129] The resolution was to provide Congress with the power to organize, arm, and discipline the militia and to govern such parts as may be called into federal service, but to reserve to the states the appointment of officers and actual training of the militia.[130] The drafters of this particular language hastened to point out that the power to organize, arm, and discipline was intended only to allow Congress to prescribe the proportion of men to officers, specify the kind and size of arms, ensure that men were armed in fact either by themselves, the states, or by Congress, and to prescribe exercises.[131] The States were to be in control of the militia by reason of the power to appoint officers and provide for the actual training.[132] The national government would be in control of the militia only when the militia was called out for national service and, even then, would have to rely on the State appointed officers to execute its orders.

A. The Antifederalist View
Additional views on the relationship between freedom and arms were expressed when the Constitution was being submitted to the states for ratification. The Antifederalist views were stated in pamphlets entitled Letters (p.1024)from the Federal Farmer to the Republican.[133] Richard Henry Lee is credited with authorship.[134] The self-styled federal farmer thought of himself as a supporter of federalism and republicanism.[135] His view of federalism was not that set forth in the proposed Constitution of 1787. The federal farmer argued that a distant national government was antithetical to freedom:

[T]he general government, far removed from the people, and none of its members elected oftener than once in two years, will be forgot or neglected, and its laws in many cases disregarded, unless a multitude of officers and military force be continually kept in view, and employed to enforce the execution of the laws and to make the government feared and respected. No position can be truer than this, that in this country either neglected laws, or a military execution of them, must lead to revolution, and to the destruction of freedom. Neglected laws must first lead to anarchy and confusion; and a military execution of laws is only a shorter way to the same point--despotic government.[136]

The federal farmer also saw evil in Congress's power to raise an army, despite the two-year limit on money appropriations and the states' control over the militia via the appointment of officers.[137] He understood the need to provide for the common defense but believed an additional check was necessary. He proposed requiring two-thirds consent in Congress before a standing army could be raised or the militia could be pressed into service by the national government.[138] Additionally, the federal farmer argued that a select militia composed of less than all the people ought to be avoided. The farmer argued 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.[139]

Another Antifederalist, George Mason, spoke on the relationship between (p.1025)arms and liberty. Mason asserted that history had demonstrated that the most effective way to enslave a people is to disarm them.[140] Mason suggested that divine providence had given every individual the right of self-defense, clearly including the right to defend one's political liberty within that term.[141]

Patrick Henry argued against ratification of the Constitution by Virginia, in part because the Constitution permitted a standing army and gave the federal government some control over the militia.[142] Henry objected to the lack of any clause forbidding disarmament of individual citizens; "the great object is that every man be armed .... Everyone who is able may have a gun."[143] The Antifederalists believed that governmental tyranny was the primary evil against which the people had to defend in creating a new Constitution. To preserve individual rights against such tyranny, the Antifederalists argued for the addition of a Bill of Rights which included, among other rights, the right to keep and bear arms.[144]

B. The Federalist View
The Federalists, those supporting the Constitution as drafted, did not dispute the premise that governmental tyranny was the primary evil that people had to guard against.[145] Nor did the Federalists dispute the nexus between (p.1026)arms and freedom.[146] In one of the first Federalist pamphlets, Noah Webster argued that the proposed Constitution provided adequate guarantees to check the dangers of any standing army.[147] His reasoning acknowledged checks and balances, but did not rely on the same. Rather, Webster argued:

Before a standing army can rule, the people must be disarmed; as they are in almost every Kingdom of Europe. The Supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States.[148]

Similarly, James Madison made clear that, although the proposed Constitution offered sufficient guarantees against despotism by its checks and balances, the real deterrent to governmental abuse was the armed population.[149] To the Antifederalist criticism of the standing army as a threat to liberty, Madison replied:

To these [the standing army] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from amongst themselves, fighting for their common liberties, and united and conducted by government possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops .... Besides the advantage of being armed, which Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are (p.1027)attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.[150]

Another leading Federalist, Alexander Hamilton, voiced a similar view.[151] Hamilton suggested that if the representations of the people, elected under the proposed Constitution, betrayed their constituents, the people retained the right to defend their political rights and possessed the means to do so.[152]

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Another leading Federalist, Alexander Hamilton, voiced a similar view.[151] Hamilton suggested that if the representations of the people, elected under the proposed Constitution, betrayed their constituents, the people retained the right to defend their political rights and possessed the means to do so.[152]

In summary, both Federalists and Antifederalists believed that the main danger to the republic was tyrannical government and the ultimate check on tyrannical government was an armed population.[153] Federalists and Antifederalists disagreed, however, on several issues. First, they disagreed as to whether sufficient checks and balances had been placed on the proposed national government to control the danger of oppression.[154] Second, the Antifederalists believed a bill of rights should be incorporated into the Constitution to guarantee certain rights.[155] The Federalists argued that such a bill of rights was unnecessary because the power of the federal government was restricted to the grant of authority provided by the Constitution.[156] There was no need to (p.1028)provide exceptions to powers not granted.[157] Further, the Federalists argued that providing exceptions to powers not granted was dangerous because it could encourage a claim that powers not expressly stated had been granted.[158] Again, both sides not only agreed that the people had a right to be armed, both sides assumed the existence of an armed population as an essential element to preserving liberty. The framers quite clearly had adopted James Harrington's political theory that the measure of liberty attained and retained was a direct function of an armed citizenry's ability to claim and hold those rights from domestic and foreign enemies.[159]

V. The Ratification Process
The Federalist and Antifederalist pamphlets were written to influence the ratification process by which the proposed Constitution would become effective.[160] In addition to revealing the drafters' political philosophy, the pamphlets and other documents intended to influence ratification reveal additional concerns with the right to bear arms.[161] Antifederalists rejected the claim that the militia would serve as a deterrent to the threat posed by a standing army.[162] The responsive argument widely made was that Congress might be able to confine the existing militia force, all armed citizens, to a select militia made up of a small segment of the population.[163] Baron Von Steuben, (p.1029)Washington's Inspector General, had already proposed such a force.[164] The fear was that creation of a select militia, armed by and loyal to the federal government, would be accompanied by disarmament of the people in general.

A. The State Conventions
All of the arguments for and against ratification came to bear in the state conventions.[165] In New York, Hamilton advocated adopting the Constitution and amending it, if necessary.[166] Hamilton's argument was that if amendments were to be made, they ought to be made after adoption since an alteration would constitute a new proposal and must undergo a new decision in each state.[167]

Hamilton's argument prevailed. New York ratified the Constitution, but it included with the ratification statement a declaration of rights and a statement that ratification was made with the assumption that the rights enumerated in the declaration could not be abridged or violated and were consistent with the Constitution.[168] Accordingly, New York ratified, but made clear that the people had a right to keep and bear arms and that the militia was to include all the people capable of bearing arms, not just a select few.

Similarly, New Hampshire ratified the Constitution but stated:

It is the Opinion of this Convention that certain amendments & alteration in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this State & more effectually guard against an undue Administration of the Federal Government--The Convention do therefore recommend that the (p.1030)following alterations & provisions be introduced into the said Constitution.

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Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion.[169]

In Pennsylvania, James Wilson argued against adding a bill of rights on grounds already offered by Madison,[170] that such an enumeration was unnecessary and indeed dangerous since no person could enumerate all the rights of men.[171] Pennsylvania ratified, but a substantial minority drafted a series of proposed amendments that included the following:

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 disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.[172]

It is doubtful that the Pennsylvania minority was attempting to constitutionalize hunting as a sport.[173] Rather, the delegates were attempting to eliminate the possibility that game laws, used effectively in England at different points to disarm the population, would not produce a similar result in America.

Samuel Adams made similar arguments in Massachusetts.[174] The argument that adoption must precede amendment prevailed.[175] In Virginia, Madison secured ratification, but George Mason, Patrick Henry, and Richard Henry Lee were successful in having the convention adopt a Declaration of Rights which was to be recommended to the First Congress for adoption as constitutional amendments.[176] The right of the people to keep and bear arms (p.1031)was included as was the statement that a militia composed of the body of the people was the natural and safe defense of a free state.[177]

North Carolina's convention proposed that a declaration of rights be added to the Constitution which explicitly identified the right of people to keep and bear arms as a natural right and one of the means necessary to the pursuit and obtainment of happiness and safety.[178] Identification of the right was accompanied by the statement that the militia, composed of the body of the people, trained to arms, is the natural and safe defense of a free state.[179] The North Carolina convention refused to ratify the Constitution until the document included this and other rights.[180] North Carolina did not ratify the Constitution until the Bill of Rights was drafted and submitted to the States.[181] Rhode Island followed an identical course by identifying the right of the people to keep and bear arms as a natural right, among others, and declining to ratify the Constitution until after the Bill of Rights had been drafted and submitted.[182]

To summarize the state ratification process, three states, New York, New Hampshire, and Virginia, ratified while expressing their understanding that the people had a right to bear arms and that Congress would never disarm law abiding citizens.[183] Two states, North Carolina and Rhode Island, refused to ratify until individual rights, including the people's right to keep and bear arms, (p.1032)were recognized by amendments.[184] In Pennsylvania and Massachusetts, an effort was made to amend or condition ratification on amendment to include, among others, the right to keep and bear arms.[185] Efforts to amend were defeated but not on the merits. There is no evidence from any state convention that any speaker suggested that the proposed Constitution would permit disarming the public.

B. The Framers' Views of the States and Their Role
As discussed earlier, one of the disputes between the Federalists and Antifederalists related to the relative strength that ought to be given to the central government. Prior to adoption of the Constitution, the country was ruled by the Articles of Confederation.[186] These articles preserved the autonomy of the individual states and provided little power to the central government.[187] The proposed Constitution altered this balance in favor of the central government. The proposed change provoked substantial discourse.[188] In recent times, the Antifederalists have been called states' rights proponents as a consequence of their position that the proposed Constitution provided too much power to the central government, with too few checks, at the expense of the states.[189]

This label--states' rights proponents--is inaccurate and misleading. Federalists and Antifederalists feared governmental tyranny by all governments--state and federal. The framers of the Constitution, particularly the Antifederalists, were not attempting to preserve states' rights. They were attempting to preserve the people's rights by maintaining local autonomy in the form of the various state governments.

The Antifederalists relied extensively on the works of Baron de (p.1033)Montesquieu to support the proposition that the geographic size of an area strongly influenced its form of government.[190] Montesquieu had written democracy could survive only in a small-sized state, small enough to permit the actual participation of the people in government and small enough so that each citizen understands that promoting the public good directly promotes the individual.[191] A middle-sized territory, as Montesquieu terms it, would inevitably become a monarchy; to an extensive territory, a despotic form of government was best adapted. In large republics, the public good is sacrificed to a multiplicity of views and the citizens do not perceive the nexus between promoting the public good and their individual welfare.

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The answer-- "I think not, as ... so extensive a territory could not be governed, connected and preserved, but by the supremacy of despotic power."[195]

The reason-- Being "satiated with the blessings of liberty" after "asserting their inalienable rights against foreign despots at the expense of so much blood and treasure," the people will spurn the shackles prepared for them under the new Constitution and confirm their liberties.[196]

Although the complaint was the dissolution of state governments, the problem was viewed as a loss of the people's rights.

In another publication, an unidentified Pennsylvania Antifederalist, writing under the pen name Montezuma, purported to be an advocate of the Constitution and to give the "inside story" of the dark designs of the proponents. Montezuma suggested:

We have taken pains to leave the legislatures of each free and independent state, as they now call themselves, in such a situation that they will eventually be absorbed by our grand continental vortex, or dwindle into petty corporations, and have power over little else than yoaking logs, of determining the width of cart wheels.[197]

Montezuma continued that state legislatures would be powerless when the national government exercised exclusive control over commerce and the power to wage war, make peace, coin money, borrow money, organize the militia and call them forth to crush insurrections.[198] By eliminating the powers of the states, the clouds of popular insurrection would likewise be broken.[199]

Another Antifederalist writer, using the name John DeWitt, posed similar arguments to the people of Massachusetts to influence the ratification convention (p.1035)in that state. The writer, whose true identity is unknown, argued that the strong national government would swallow up the state governments in a hasty stride to a Universal Empire in the Western World. The predicted result was a loss of the people's liberty.[200] Again, the Antifederalist argument was that retention of power by the states was necessary to secure the rights of the people.[201]

The Antifederalists, while believing the people's rights would be protected best by strong state governments, did not trust those governments. Federalists also distrusted state governments. Both groups distrusted any government because, as George Mason stated, "considering the natural lust of power so inherent in man, I fear the thirst of power will prevail to oppress the people."[202] James Madison similarly distrusted not only man's ambition for pre-eminence and power but also the factionalism posed by groups of men organized and pursuing narrow interests under the banner of state government.[203]

The Revolutionary era and state constitutions illustrate the distrust of the states' power. It should not be surprising that Americans in the midst of a revolution against tyranny would be suspicious of government, particularly when dealing with plans for their own government. As a consequence, most of the state constitutions of the era vested primary governing authority in a popularly elected legislative branch of government, not the executive,[204] and contained a statement for a bill of rights.[205] All contained a statement that all power originally rests in the people.[206] The state constitutions of Massachusetts, North Carolina, and Pennsylvania contained an explicit provision concerning the right to bear arms. The constitutions of Maryland, New Hampshire, New York, and Virginia identified the necessity of maintaining the militia to preserve the free state. New York's constitution, while providing for a militia but not a right to bear arms, also noted that Quakers could not be compelled to bear arms. (p.1036)Similarly, Maryland, New Hampshire, and Virginia provided for a militia but not explicitly for the right to bear arms. They also provided for popular revolt by giving the people the right to reform the government and the right to defend their life and liberty[207] and by providing that the doctrine of non-resistance against arbitrary power is slavish, absurd, and destructive.[208] In context, providing for the militia, defined at this time as the body of people all bearing arms, appears to be the functional equivalent of providing each individual with the right to bear arms.

VI. The Bill of Rights
With ratification complete and the First Congress assembled, James Madison introduced amendments setting forth what would eventually become the Bill of Rights. The ratification process had produced a call for such a declaration. Madison and Hamilton had argued that ratification must precede amendment and now the time had come to honor the implied promise that amendments would be made. Madison campaigned for a seat in the first Congress on the pledge that he favored amendments.[209]

Madison's first proposal was made on June 8, 1789, to the House of Representatives. It embodied nineteen substantive items and appeared to track the suggestions made by the various state conventions. Madison's first proposal was not in the form of a separate Bill of Rights. Instead, he proposed amendment by interlineation, placement of the individual amendments in the text of the Constitution. One of the proposed amendments was "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 conscientious objector shall be compelled to render military service in person."[210] Madison's proposal called for this right and the right to freedom of the press, religion, and speech, to be inserted in Article 1, Section 9, between clauses 3 and 4. Article 1, Section 9 concerns limitations on Congress's power over citizens, namely, no suspension of habeas corpus, no ex post facto laws, and no bills of attainder. Madison's suggested placement of this amendment demonstrates that he understood the right to bear arms to be an individual right. Had Madison viewed the right as the states' right, the more logical placement of the right would have been in Article 1, Section 8, clause 16, which reserves to the states the power to appoint the officers of the militia and provides authority to train the same.(p.1037)

In addition, Madison's notes regarding the introduction of his proposals contain an outline which suggests he should read the amendments and explain that they first relate to private rights. He then instructed himself to explain the deficiencies of the English Declaration of Rights. Among the deficiencies was that the declaration was a mere act of Parliament and that guarantees were not sufficiently broad, namely, no freedom of press or conscience and the restriction of arms to Protestants.[211]

Madison's proposals were referred to a select committee that reported to the House sitting as a committee of the whole. When the proposal left the select committee, it read:

A well regulated Militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.[212]

In the House, the debate focused on the last clause. The argument was as follows:

Mr. Gerry -- This declaration of rights, I take it, is intended to secure the people against the maladministration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive that this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous and prevent them from bearing arms.[213]

An amendment to remove the "religiously scrupulous" language failed.[214] Madison yielded to pressure to set forth amendments at the end of the Constitution. Seventeen articles of amendment were sent to the Senate.[215]

The Senate streamlined the package by combining some amendments and simplifying others. On the right to bear arms, the Senate omitted the words "composed of the body of the people" and deleted the provision exempting (p.1038)conscientious objectors from service.[216] The Senate rejected language that would have added the words, "for the common defense" as part of the phrase "the right of the people to keep and bear arms (for the common defense) shall not be infringed."[217] Ultimately twelve articles were sent to the states for ratification. The first two failed, but the other ten were ratified.[218] The language of the Second Amendment, as adopted, read:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.[219]

VI. Conclusion
English history made two things clear to the American revolutionaries: force of arms was the only effective check on government, and standing armies threatened liberty. Recognition of these premises meant that the force of arms necessary to check government had to be placed in the hands of citizens. The English theorists Blackstone and Harrington advocated these tenants. Because the public purpose of the right to keep arms was to check government, the right necessarily belonged to the individual and, as a matter of theory, was thought to be absolute in that it could not be abrogated by the prevailing rulers.

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These views were adopted by the framers, both Federalists and Antifederalists. Neither group trusted government. Both believed the greatest danger to the new republic was tyrannical government and...

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See Daniel R. Coquillette, Ideology and Incorporation III: Reason Regulated--The Post-Restoration English Civilians, 1653-1735, 67 B.U. L. Rev. 289, 301 (1987) (discussing the Long Parliament). <br />
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[111] See John G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition 462-552 (1975); Caroline Robbins, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development, and Circumstances of English Liberal Thought from the Restoration of Charles II Until the War with the Thirteen Colonies 385 (1959); Robert E. Shalhope, Republicanism and Early American Historiography, 39 Wm. & Mary Q. 334, 334-37 (1982).

[112] See William M. Wiecek, The Guarantee Clause of the U.S. Constitution 18-19 (1972).

[113] See generally Pocock, supra note 111 (tracing republican thought from Aristotle to Machiavelli and Florentine political theory, to James Harrington and the English civic humanists, to the eighteenth century's Radical Whigs, and, ultimately to the American Founders). For an in-depth analysis of Harrington's political thought, see The Political Works of James Harrington (John G.A. Pocock ed., 1977).

[114] See generally James Harrington, The Commonwealth of Oceana, in The Political Works of James Harrington, supra note 113, at 170 (explaining that the way to mediate security of property with widespread civic participation was to redistribute property, especially non-feudal, "allodial" interest in land, broadly within society so that citizenship, and the opportunity to participate, would be widely available). Not all republicans, however, held egalitarian property distribution notions. For a discussion of elitist aspects of republicanism, see, e.g., Hendrick Hartog, Imposing Constitutional Traditions, 29 Wm. & Mary L. Rev. 75 (1987); Frank I. Michelman, Possession v. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987).

[115] The Political Works of James Harrington, supra note 113.

[116] Niccolo Machiavelli, The Prince and the Discourses 44 (Luigi Ricci trans., Mod. Lib. ed. 1950) (1513).

[117] See James Harrington, The Political Writings of James Harrington: Representative Selections 74 (Charles Blitzer ed., 1955).

[118] Morgan, supra note 60, at 157.

[119] See, e.g., Bernard Bailyn, The Ideological Origins of the American Revolution (1967); Pocock, supra note 111, at 462-552; Robbins, supra note 109, at 385. Although these historians are all part of a common movement, there do exist significant differences in the ways they view republicanism. See Shalhope, supra note 111, at 334-37.

[120] Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 585 (citing Cristopher Hill, Some Intellectual Origins of the English Revolution 27 (1980)).

[121] Hardy, Historiography, supra note 17 [errata: Armed Citizens, note 12], at 589 (citing Francois Hotman, Francor Callia at iv (R. Molesworth trans., London 1711)).

[122] The Founding Fathers were influenced by the fact that the entire body of republican philosophy known to them was based on English and classical history, which taught that popular possession of arms was vital to the preservation of liberty and a republican form of government. See Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982).

[123] The unanimity with which Federalists and Antifederalists supported an individual right to bear arms is a reflection of their shared philosophical and historical heritage. The unanimity in the contemporary understanding of the Second Amendment helps explain the relative absence of recorded debate over it. What little debate there is appears at 1 Annals of Cong. 778-80 (J. Gales ed., 1834) and relates to James Madison's proposal that the amendment provide that "no person religiously scrupulous shall be compelled to bear arms." Id.

[124] U.S. Const. art. I, § 8, cl. 11-16. In these clauses, Congress may "declare War, ... raise and support Armies, ... provide and maintain a Navy; ... make Rules for the Government and Regulation of the land and naval Forces; ... provide for calling forth the Militia ... provide for organizing, arming, and disciplining, the Militia ...." See also Chappell v. Wallace, 462 U.S. 296, 301 (1983) (stating that the framers of the Constitution clearly contemplated that Congress have plenary authority over creation and maintenance of military).

[125] Documentary History of the Constitution 560 (Dept. of State, 1900), reprinted in 3 Documentary History of the Constitution of the United States of America 1786-1870, at 560 (Johnson Reprint Corp. 1965).

[126] Id. at 560, 599, 677, 746.

[127] For a discussion of the debate concerning the military at the Constitutional Convention, see Samuel P. Huntington, The Soldier and the State 80-97, 345-46 (1957).

[128] See U.S. Const. art. I, § 8, cl. 12.

[129] Akhil Amar argues that the Second Amendment also provides a linguistic gloss on Congress's Article I military powers. An army constituted hired soldiers, unlike a militia that consisted of the general public. Consequently, Congress's power to raise an "army" involves authority to enlist soldiers, not conscript them. See Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131 (1991).

[130] U.S. Const. art. I, § 8, cl. 15 reserves to the states "the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

[131] See 1 The Records of the Federal Convention of 1787, at 386 (Max Farrand ed., 1911) [hereinafter Records].

[132] U.S. Const. art. I, § 8, cl. 16 reserves "to the States respectively" the power to appoint the officers of any militia for which Congress might provide and to conduct the "training [of] the militia according to the discipline prescribed by Congress."

[133] Letters from the Federal Farmer to the Republican (W. Bennett ed., 1978) [hereinafter Federal Farmer].

[134] The true author of the Letters from the Federal Farmer to the Republican is unknown. The traditional view is that Richard Henry Lee of Virginia was the author. Steven R. Boyd argues that the overwhelming contemporary opinion was that Lee was indeed the "Federal Farmer." See Steven R. Boyd, Impact of the Constitution on State Politics: New York as a Test Case, in The Human Dimensions of Nation Making 270, 276 n.14 (J. Martin ed., 1976).

[135] Letter from the Federal Farmer (Oct. 13, 1787), reprinted in 2 The Complete Anti-Federalist 251 (H. Storing ed., 1981).

[136] Federal Farmer, supra note 133, at 13.

[137] For Antifederalist attacks on standing armies, see, e.g., Essays by a [Maryland] Farmer, in 5 Herbert J. Storing, The Complete Anti-Federalist 22-28 (1981).

[138] Id. at 21-22.

[139] Id. at 124.

[140] 3 The Papers of George Mason 1725-1792, at 1075 (Robert A. Rutland ed., 1970).

[141] Id. at 1075, 1076.

[142] Speeches by Patrick Henry Before the Virginia Ratifying Convention (June 5 & 7, 1788), reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 199-216 (Ralph L. Ketcham ed., 1986).

[143] Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 229 (1983).

[144] See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991).

[145] Madison warned that the greatest danger to the constitutional order and to the liberty of the citizen was not the possibility of a tyrant President, which he regarded as slight, but the risk that Congress would take over the powers of the other two branches of government. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands," Madison wrote, "may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 329 James Madison) (Tudor Publishing Co. 1937). Power "is of an encroaching nature," and something more than "parchment barriers" is required to restrict it "from passing the limit assigned to it." Id., No. 48, at 321. The risk of congressional power is great, far greater than the risk from the President or the courts. Congress "alone has access to the pockets of the people." Id. at 321, 323. Its supposed influence over the people is an inducement to act, and it can expand its power in many ways, masking its encroachments "under complicated and indirect measures." Id. at 323. Madison concluded that "it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions." Id.

[146] William H. Rawle, A View of the Constitution 125-26 (2d ed. 1829). Alexander Hamilton saw the people's possession of arms as guaranteeing freedom from state as well as from federal tyranny. The armed populace, "by throwing themselves into either scale, will infallibly make it preponderate" against either a federal or a state invasion of popular rights. The Federalist No. 28, at 228 (Alexander Hamilton) (John C. Hamilton ed., 1864).

[147] See Staff of Senate Subcomm. on the Constitution, Comm. on the Judiciary, 97th Cong., 2d Sess., Report on the Right to Keep and Bear Arms 27 (Comm. Print 1982).

[148] Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed by the Late Convention Held at Philadelphia 43 (Philadelphia 1787), reprinted in Pamphlets on the Constitution of the United States Published During Its Discussion by the People: 1787-1788, at 5 (Paul L. Ford ed., 1888).

[149] At the convention, James Madison remarked:

As the greatest danger is that of disunion of the States, it is necessary to guard [against] it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.

James Madison, Notes of Debates in the Federal Convention of 1787, at 600 (Gouverneur Morris) (Ohio Univ. Press rev. ed. 1984).

[150] The Federalist No. 46, at 310, 311 (James Madison) (Modern Library ed., 1937).

continued

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See Alexander Hamilton and the Founding of the Nation (Richard B. Morris ed., 1957). <br />
<br />
The Federalist No. 28 (Alexander Hamilton). <br />
<br />
See supra notes 133-52 and accompanying text. <br />
<br />
The...

[wrbones]

[191] Montesquieu, The Spirit of Laws, bk. VIII, ch. 16, at 176 (David W. Carrithers ed., 1977).

[192] Id. at bk. IX, ch. 1, p. 183.

[193] Id.

[194] The Antifederalists 40 (Cecelia M. Kenyon ed., 1966).

[195] Id.

[196] Id. at 40-41.

[197] Id. at 63.

[198] Id. at 64.

[199] Id.

[200] Id. at 104-05.

[201] One leading Antifederalist shared and advocated this view. Mason argued that the people's political happiness rested on the state governments because the states, as smaller political units, provided more direct representation of the people. The Antifederalists, supra note 194, at 272.

[202] 3 The Papers of George Mason 1052 (Robert A. Rutland ed., 1970).

[203] The Federalist No. 10 (James Madison).

[204] Federal & State Constitutions of the United States (Ben Poore Perley ed., 1924); Maryland, 817; Massachusetts, 956; New Hampshire, 1279; New Jersey, 1310 (religion); New York, 1329; North Carolina, 1409; Pennsylvania, 1540; South Carolina, 1640; Virginia, 1910.

[205] Id.; Maryland, 817; Massachusetts, 956; New Hampshire, 1279 (Bill of Rights added 1784); New Jersey religion; New York, 1329 (militia, religion); North Carolina, 409; Pennsylvania, 1540; Virginia, 1910.

[206] Id.; Massachusetts, 956; Maryland, 817; New Hampshire, 1279; New Jersey, 1310; New York, 1329; North Carolina, 1409; Virginia, 1910.

[207] Id.; New Hampshire, 1279.

[208] Id.; Maryland, 818; Virginia, 1909.

[209] Edward Dumbauld, The Bill of Rights and What It Means Today 33 (1957).

[210] Hardy, Armed Citizens, supra note 12, at 609.

[211] Id.

[212] The Founders Constitution 211 (Philip B. Kurland & Ralph Lerner eds., 1987).

[213] Id.

[214] See William Miller, The First Liberty 123 (1986).

[215] The House labeled its sections of what became the Bill of Rights as "articles." See Mark P. Denbeaux, The First Word of the First Amendment, 80 Nw. U. L. Rev. 1156, 1166 (1986).

[216] Dumbauld, supra note 209, at 46.

[217] The Senate did so without explanation. See Hardy, Armed Citizens, supra note 12, at 611.

[218] Of the two amendments that were defeated, one concerned the apportionment of representatives, and the other would have prevented congressional salary increases from taking effect until after the next election of representatives. Peter Suber, Population Changes and Constitutional Amendments: Federalism Versus Democracy, 20 U. Mich. J. L. 409, 440 (1987). The ten amendments that were ratified became the Bill of Rights in 1791. Maeva Marcus, The Adoption of the Bill of Rights, 1 Wm. & Mary Bill of Rights J. 115, 118 (1992).

[219] U.S. Const. amend II.

[SHOOTER1]

Thanks Bones, I think Ill print this and read at leasure.:banana: