74 Texas L. Rev. 1125-1151 (1996).
Toward a Functional Framework
Interpreting the Second Amendment
By Scott Bursor
103d Congress passed the Brady Handgun Violence Prevention
Act and the ban on "assault"
weapons, two of the most controversial
gun control measures in American history. President Clinton, who
signed those measures into law, later assured the overwhelming
majority of the American people who believe that they have a constitutional
right to own firearms that "[t]he
Members of Congress who voted for that bill and I would never
do anything to infringe on the right to keep and bear arms to
hunt and to engage in other appropriate sporting activities."
The Second Amendment provides that "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." And though this
provision of the Bill of Rights has been avoided by the Supreme
Court, ignored by the legal
academy, and dismissed by even
the most fervent defenders of civil (p.1126)liberties
for several decades, the trend toward more restrictive regulation
of firearms is likely to generate a renewed interest in this "Lost
Some outspoken supporters of more restrictive
gun control have urged that the Amendment be repealed.
Others have taken a less forthright tack by arguing that despite
the apparent clarity of its language ("right of the people"),
the Second Amendment was never meant to guarantee an individual
right to own arms. Rather, they argue, it was designed solely
to allow the states to continue to maintain their militia units
(or, in modern terms, the National Guard) free from federal interference.
Thus the Amendment presents no obstacle to even the total prohibition
of private firearm ownership. This notion has been referred to
as the "states' right" theory.
Although the states' right theory is understandably
very attractive to supporters of more restrictive regulation of
firearms and has been accepted
by a number of courts, it
is seriously flawed and has proven to be virtually indefensible
in the law reviews. Thus,
the claim that the (p.1127)right
to bear arms was intended to ensure the states' dominion over
formal military units such as the National Guard is rarely heard
in serious (p.1128)constitutional
discourse. However, the debate
over the Amendment's meaning has not been closed. Rather, the
terms of the debate seem to have shifted. Instead of arguing over
whether the Amendment was meant to guarantee an individual
right, the debate has evolved to a more sophisticated and intricate
exploration of why the Amendment guaranteed that right.
This more sophisticated debate is carried
on largely within what I will call a "functional framework." This
framework is constructed from the rationales for the adoption
of the Second Amendment--the reasons that the ratifiers sought
to protect private gun ownership. Within this functional framework
or approach there is still much room for disagreement. The states'
right theory, for example, has evolved into a more refined doctrine
which concedes that the Amendment originated as a protection of
an individual right but holds that the scope of that right is
limited to militia service. Thus, there is no right to own arms
for personal or private self-defense.
Other approaches recognize a right to own arms to defend the state,
to resist the state, for
personal self-defense, or
for combinations of these purposes.
Still another alternative is embodied in President Clinton's suggestion
that the right to keep and bear arms is limited to hunting and
appropriate sporting activities.
Thus, the central issues in the
current Second Amendment debate could be phrased as follows: Why
did the ratifiers of the Bill of Rights seek to protect the widespread
ownership of arms? And how, given modern conditions, are we to
interpret that protection? These are the issues that I will explore
in this Note.(p.1129)
Part I examines the
late-eighteenth-century conception of the relation between a right
to arms and a free society. Analysis of the dominant political
and philosophical ideas of the era suggests that widespread private
ownership of arms was understood to serve at least four interrelated
functions. An armed populace was thought to be the best means
of defending the state, sensitizing the government to the rights
of the people, preserving civil order and the natural right of
self-defense, and cultivating the moral character essential to
self-government. I label these the military,
and moral functions and conclude that the
Second Amendment was designed to protect private ownership of
arms so that the citizenry would remain capable of performing
each of these functions.
In Part II, I consider
the modern relevance of the view of the armed citizenry embodied
in the Second Amendment. Many commentators have asserted that
this view is a dangerous anachronism inapplicable to late-twentieth-century
America. After rejecting these assertions as unfounded, I argue
that despite the advent of modern police forces and professional
armies, an armed citizenry is still capable of performing each
of the four functions.
Because much of the rhetoric employed
to discourage recognition of a Second Amendment right laments
the absurdity that individuals would be allowed to own flamethrowers
or nuclear weapons, it is important to demonstrate that a proposed
theory does not compel such a result. Part III
applies my functional theory of the Second Amendment to several
gun control measures to illustrate that such a theory is capable
of protecting the rights of citizens without invalidating reasonable
restrictions on the keeping and bearing of arms.
I. A Functional Analysis of the Second
We must begin by examining the rationale
offered for the right to keep and bear arms. The text of the Second
Amendment states that its ultimate end is "the security of a free
State." The means to that
end is "the right of the people to keep and bear Arms."
In seeking to determine how private (p.1130)ownership
of arms was believed to contribute to that security, we look to
the understanding of the ratifiers and the traditions that influenced
A. The Ideological Origins of the Right
Madison drafted the Bill of Rights with
the aid of innumerable suggestions from his countrymen, most commonly
in the form of the state bills of rights and the hundreds of amendments
suggested by the state conventions that ratified the Constitution.
Indeed, Madison began his work by purchasing a pamphlet that listed
over two hundred demands of the state conventions,
eliminating some, and rewording and consolidating as many as possible
to develop the Bill of Rights.
Drafted with an eye toward earning the approval of the statehouses,
the Bill of Rights was thus infused from the bottom up with the
dominant ideology of the day.
That ideology was the Whig ideology, which
dominated American politics in the late eighteenth century. John
Adams estimated that ninety percent of Americans were Whig sympathizers
at the time of the American Revolution.
"In the late Eighteenth Century, a firm
background in history was considered indispensable to any legal
or political thinker." The
American Whigs were deeply familiar with Latin, Greek, and English
history. They were also intimately
familiar with and deeply influenced by the writings of their English
John Adams held special regard for Harrington
.... Adams and Madison both studied Molesworth in detail; Jefferson's
library boasted copies of Sydney, Molesworth and Harrington. These
works, and those of Fletcher, were also owned by the likes of
Benjamin Franklin, John Hancock, and George Mason. When Burgh's
Political Disquisitions were printed in the colonies, Benjamin
Franklin served as editor, and the subscription list for the first
edition included George Washington, Thomas Jefferson, John Adams,
John Hancock, and John Dickinson.
The American Whigs also drew upon the
libertarian and republican thought of the Florentine tradition
articulated by authors such as Niccolo Machiavelli, Sir Walter
Raleigh, Jean Bodin, John Trenchard, Thomas Gordon, and Walter
B. The Functions of Private Arms. The context of the ratification
of the Constitution and the adoption of the Bill of Rights suggests
that private ownership of arms, as protected by the Second Amendment,
was intended to serve at least four functions. First, an armed
populace was considered the best military means of defending a
free state against foreign conquerors.
Second, an armed populace was thought to play an important political
role by sensitizing the rulers to the rights of the people.
Third, ownership of arms suitable for self-defense was universally
held to be among the natural rights of man as well as the most
effective means of preserving civil order.
And fourth, being armed was considered essential to the dignity
and moral character of citizens of a free state.
I have labeled these the military, political, civil, and moral
Military.--No one disputes
that the military function of the citizen militia was an important
consideration in the adoption of the Second Amendment. This agreement
is not surprising given the ubiquitous reliance on militia to
serve some military function at least since medieval times.
Military and political systems in which every free man was obligated
by law to possess weapons and to serve in militia when called
upon have been traced as far back as 690 A.D.
English history is replete with instances in which the militia
were called upon for military service.
Moreover, the military might of militia was universally praised
by authors of the major republican and libertarian treatises.
From America's early colonial history,
the militia (not the British army) was the primary, and most effective,
means of protection from foreign invaders.
Thus, on the eve of the American Revolution, the Baptist preacher
John Allen warned King George of the peril of war with Americans
who know the use of the gun, and the military art, as well as
any of his Majesty's troops at St. James's, and where his Majesty
has one (p.1133)soldier,
who art in general the refuse of the earth, America can produce
fifty, free men, and all volunteers, and raise a more potent army
of men in three weeks than England can in three years.
This sentiment was expressed more conservatively
by the Continental Congress in its declaration of July 1775, in
which it warned the English that "men trained in arms from their
infancy, and animated by the love of liberty, will afford neither
a cheap or easy conquest."
These warnings did not go unnoticed, as the widespread American
ownership of arms was often cited by Parliament as a reason to
negotiate with the colonists rather than use force.
These circumstances instilled Americans with a well-founded belief
in the military superiority of an armed populace as opposed to
a select militia or super-select standing army.
Political.--The Whigs believed
that the widespread ownership of arms would prevent domestic tyranny
by sensitizing the rulers to the rights of the people. Most Federalists
and all Anti-Federalists shared the Whig tradition's suspicion
of government and desire to prevent the concentration of power
that they believed inevitably led to tyranny. They had justified
the American Revolution by appealing to the natural rights of
men and the idea that governments "derived their just Powers from
the Consent of the Governed."
Similarly, our Constitution is premised on the sovereignty of
the individual and the idea that individuals yield some of their
sovereignty to the government to promote their interests
(not the interests of their rulers).
The idea of individual sovereignty, when
examined against the backdrop of the republican and libertarian
principles of the Whigs, yields great insight into the political
dimension of the relationship between armed citizens and their
government. The Framers were familiar with Aristotle's warning
that "the commonwealth is theirs who hold the arms: the sword
and sovereignty ever walk hand in hand together."
Andrew Fletcher, (p.1134)an
early Whig who was widely read in the colonies,
also warned that "he that is armed, is always master of the purse
of him that is unarmed."
These axioms were embodied in the Second
Amendment's guarantee of an armed populace--a guarantee that was
the ultimate check in the Constitution's grand design of checks
and balances, a guarantee that the people would remain free, sovereigns
of themselves. These axioms indicate that an armed citizenry is
absolutely necessary to ensure the subordination of military to
civilian control, to keep the rulers sensitive to the rights of
the people, and to maintain the people's ability to resist tyrannical
rulers. For indeed, democracy and civil rights cannot exist where
the citizens are disarmed.
Civil.--The widespread ownership
of arms was also intended to preserve the natural right of self-defense.
During the consideration of our Bill of Rights, the personal right
to own arms for self-defense was much less discussed than were
the political aspects of the right to bear arms. Such discussion
was lacking not because the Framers did not believe in such a
right, but because it was the least controversial aspect of the
right to arms. Nevertheless, there is ample evidence of the widespread
belief in the right to own arms for self-defense.
The English considered the right to self-defense
to be the premier natural right upon which all other rights depended.
The English Declaration of Rights of 1689 was widely understood
to encompass such a right.
And although the Declaration only guaranteed Protestants the (p.1135)right
to own arms and would have allowed the disarming of Catholics,
even the most anti-Catholic members of Parliament considered it
oppressive to do more than reduce their armament. A 1689 act,
passed when there was still risk of King James, a papist, returning
to the throne, allowed Catholics to retain all arms needed for
self-defense. The debate
surrounding this measure evidenced the belief that the natural
right of self-defense was inviolable. "The act's zealous sponsor,
who complained during the debate that 'we are so mealy-mouthed
and soft-handed to the Papists,' nonetheless explained that Parliament
should not seize arms 'necessary [for the] defense of their houses.'"
The view that the right to own arms for
self-defense was the first right of nature was held on both sides
of the Atlantic Ocean. James Burgh's Political Disquisitions,
which played a central role in the shaping of political thought
in the colonies, exhorted
that "he, who thinks he is his own master, and has what he can
call his own, ought to have arms to defend himself, and what he
possesses ...." Given the
uncontroversial nature of this sentiment, the natural
right to own arms for personal self-defense was soon codified
in the constitutions of several states. Meeting in 1776, the constitutional
convention of Pennsylvania, presided over by Benjamin Franklin,
framed a Declaration of Rights which stated "[t]hat the people
have a right to bear arms for the defense of themselves, and the
state." A year later, Vermont's
constitutional convention adopted verbatim the same provision.(p.1136)
Other states adopted provisions
that spoke of the "common defense."
However, such language was not meant to abrogate the right to
use arms for personal self-defense. The Parliament that enacted
the 1689 English Declaration of Rights clearly saw such language
not as a restriction, but as an amplification of the right.
The circumstances surrounding the adoption of the Massachusetts
Constitution evidenced the same belief. The Massachusetts convention
proposed the following language: "The people have a right to keep
and bear arms for the common defence."
Some objected to the use of such language as possibly restricting
the right. John Adams, the
drafter of the provision, probably dismissed such a reading. When
read in conjunction with Article I, which included among the unalienable
rights "defending their lives and liberties; ... and protecting
property," the provision
clearly protected the right to own arms for personal self-defense.
Further, because the right to keep and bear arms remained in "the
people," they would, of course, be able to use their arms for
lawful purposes in addition to the common defense.
The demands for a federal Bill of Rights
expressed at many of the state ratifying conventions also envisioned
a right to keep and bear arms for self-defense and other lawful
purposes. The first call for the inclusion of a right to bear
arms in the federal Constitution was advanced in a failed motion
made during the Pennsylvania ratifying convention which would
have demanded "[t]hat 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."
The Pennsylvania delegates did not secure enough votes to condition
ratification upon such a call, but their report was widely circulated
throughout the states and influenced the drafting of subsequent
bills of rights. Madison,
when drafting the Bill of Rights in the First Congress, worked
from a reprint of the state demands that included the (p.1137)Pennsylvania
report. Although the language
of the Second Amendment does not speak explicitly of a personal
right to self-defense, several factors indicate that this absence
stems from Madison's belief that its inclusion was commonly understood:
The right to self-defense was the least controversial aspect of
the right to arms, and the
right to self-defense was, at the time, universally believed to
be man's first natural right, inseparable from the people's right
to arms. Thus, it is not
surprising that in the process of paring down the list of demands
to a reasonable number of amendments, Madison considered it unnecessary
to explicitly mention self-defense in the text of the Second Amendment.
During the Senate's debates about the
proposed Bill of Rights, that body rejected a motion to insert
the words "for the common defense" next to the words "to bear
arms." We have no record
of the debates because the Senate debates at this time were conducted
in secret; thus the reason
for the rejection is unknown. However, there are two possible
explanations. Either the Senate, like the Parliament of a century
earlier, believed the language dangerously expanded the right,
or they shared the concern of those in Massachusetts who had feared
that such language could be read to restrict the right. The militia's
strong showing in the recent Revolution and the nearly universal
regard for a citizen militia seem to indicate that the Senate
was concerned with the latter. Regardless of the reason, the Senate
intended to preserve the individual citizens' natural right of
self-defense that existed at common law and was imported from
Moral.--A central tenet of the
republican tradition held that being armed is essential to the
development of civic virtue and good moral character. Both Machiavelli
and Harrington "considered the bearing of arms to be the primary
means by which individuals affirmed their social (p.1138)power
and political participation as responsible moral agents."
Burgh, who directly influenced many of the Framers,
articulated the "integral relationship ... between the possession
of arms and the spirit and character of the people."
He denounced English society's loss of virility and virtue, and
insisted that "interested only in luxury and commerce, Englishmen
had surrendered their arms" and yielded their military responsibilities
to a professional army.
Other commentators also recognized the
importance of the right to bear arms to moral development. Joel
Barlow illustrated this belief in his Advice to the Privileged
Orders in the Several States of Europe, writing that a government
that disarms its people "palsies the hand and brutalizes the mind:
an habitual disuse of physical forces totally destroys the moral;
and men lose at once the power of protecting themselves, and of
discerning the cause of their oppression."
Adam Smith likewise lamented the fate of a disarmed people, who,
he believed, inevitably suffered "that sort of mental mutilation,
deformity and wretchedness which cowardice necessarily involves
In 1775, the Continental Congress echoed
Burgh's and Barlow's contempt for the state of English society
and contrasted it with the virtuous republican character of the
American people. Warning against attempts to tyrannize the colonists,
the Congress declared that [i]n Britain, where the maxims of freedom
were still known, but where luxury and dissipation had diminished
the wonted reverence for them, the attack [of tyranny] has been
carried on in a more secret and indirect manner: Corruption has
been employed to undermine them. The Americans are not enervated
by effeminacy, like the inhabitants of India; nor debauched by
luxury, like those of Great-Britain.
The recognition of the moral function
of arms did not fade after the Revolution. Years later, Thomas
Jefferson advised his teen-age nephew: "As to the species of exercise,
I advise the gun. While this gives a moderate exercise to the
body, it gives boldness, enterprise, and independence to the mind."
This boldness, enterprise, and independence was <(p.1139)believed
by the Framers to be necessary to the character of a good citizen
and essential to the vitality of democratic government. Thus,
by protecting the citizens' right to own arms, the ratifiers of
the Second Amendment sought to encourage the moral development
of citizens, and hence, the republic.
C. Epilogue ... Prologue.
There is some artificiality in distinguishing the military, political,
civil, and moral functions of arms embodied in the Second Amendment.
It is clear that there is much overlap and interrelation between
the functions. The capability of self-defense inherent in the
civil function is also among the essential elements of the other
three. Likewise, the military function of repelling foreign foes
is closely entwined with the ability to restrain domestic tyrants
and subdue the military to civilian control that are at the core
of the political function.
Historically speaking, it is also clear
that the tradition from which the Amendment derives did not make
such distinctions. According to classical republican (and to some
extent, Whig) ideology, there is no distinction between defending
one's self or one's state and no distinction between foreign aggressors,
domestic tyrants, or common criminals--all were enemies of the
The value of this framework lies not
in its conceptual neatness or historical accuracy, but in its
usefulness as a guide to understanding the Second Amendment. Delineating
the functions inherent in the ratifiers' view of the relationship
between arms, freedom, and security should serve to clarify inquiry
into the protection of that relationship embodied in the Second
Amendment. Before considering how best to interpret the Second
Amendment in accordance with that view, however, we must address
its relevance to our modern world.
II. Arms and the Modern
World. Is the view of an armed populace embodied in
the Second Amendment still valid in a society with professional
military and police forces? Is an armed populace still capable
of performing the functions detailed above? Many have argued that
it cannot and thus, that the private ownership of arms is an anachronism
inapplicable to our current circumstances.
rest on empirical assertions that are highly debatable to say
Commentators often attack the vitality
of the military and political functions of the militia concept
with the argument that they can no longer be performed by a militia.
Simply stated, the argument is that an armed citizenry cannot
restrain a domestic tyrant or deter a foreign conqueror backed
by a modern army. This empirical assertion is frequently made
by lawyers, politicians, or other advocates who offer neither
argument nor authority for the proposition.
And while this assertion may be true in some limited number of
circumstances, as a categorical assertion it is demonstrably false.
Consider some recent examples. The Vietnam
War demonstrated that a modern military power can be resisted
by guerilla fighters bearing only small arms.
This lesson has not been forgotten. In 1992, the United States
declined to intervene in the conflict in Bosnia-Hercegovina after
an aide to General Colin Powell, then Chairman of the Joint Chiefs
of Staff, advised the Senate Armed Services Committee that the
widespread ownership of arms in the former Yugoslav republic made
even limited intervention "perilous and deadly."
The deterrent effect of an armed populace was emphasized by Canadian
Major General Lewis Mackenzie, who led United Nations peacekeeping
troops in Sarajevo for five months. Despite the tremendous capabilities
of the United States Armed Forces, he explained, the prevalence
of arms ownership in the area caused him to believe that if American
forces were to be sent to Bosnia, "Americans [would be] killed....
You can't isolate it, make it nice and sanitary."
The validity of these concerns has also
been demonstrated in the current conflict in Chechnya where "[m]ore
than 40,000 soldiers from the (p.1141)Russian
army ... have quickly been humbled by a few thousand urban guerrillas
who mostly live at home, wear jeans, use castoff weapons and have
almost no coherent battle plans or organization."
The Russian army's nuclear capability apparently has not translated
into a tactical advantage in the streets of Chechnya.
In addition to these anecdotal examples,
there is further evidence of the military practicality of an armed
citizenry. The 1966 Arthur D. Little, Inc. Report ("the Little
Report"), commissioned by the United States Department of the
Army, concluded that in spite of recent technological developments
in the modes of waging war, a modern war will almost certainly
be a "shooting war" in which the basic individual weapon of combat
will be the rifle.
The Little Report does more than refute
the notion that riflemen are militarily obsolete in the nuclear
era. It offers an additional insight into the military value of
armed citizens: they make better soldiers when they enter the
service. They are significantly better marksmen than those who
did not own arms prior to enlistment (even when marksmanship is
measured after military training) and are more confident
in their ability to perform effectively in combat.
Furthermore, gun owners are more likely to enlist, to prefer combat
outfits, and to become marksmanship instructors.
David Williams's Civic Republicanism
and the Citizen Militia: The Terrifying Second Amendment
presents another version of the obsolescence argument. Essentially,
Williams argues that because there is no universal militia and
because gun owners are not a representative sample of the American
population, the political function of private arms ownership is
an anachronism. That is,
because today's armed citizens are only a slice of the population,
motivated by self-interest rather than the common good, they cannot
(or will not) perform their role of keeping the government sensitive
to the rights of all citizens.
Despite this supposed obsolescence, Williams
recognizes that "[t]he right to arms and the universal militia
were significant structural elements in the polity contemplated
by the Constitution," and therefore urges courts to "update the
[Second] Amendment." Williams'
"updated Second (p.1142)Amendment
would ... have no independent content but would be a shadowy gravitational
presence in interpreting the rest of the Constitution ... to increase
the influence of the people over their government."
According to Williams, the Second Amendment ought to be interpreted
in such a way that it does not protect the right to own arms (which
it explicitly mentions), but in a way that pulls the Constitution
toward policies such as "workplace democracy," "campaign finance
reform or proportional representation," and greater protection
of "statutory welfare and other kinds of property that provide
autonomy in the modern world."
Upon reading Williams's republican interpretation
of the right to keep and bear arms, one may be struck by the differences
between his conception of autonomy and that of the republican
tradition espoused by Aristotle, Machiavelli, Fletcher, Burgh,
and the shapers of the Bill of Rights. Williams's analysis is
insightful in its sensitivity to the important political function
of arms in our constitutional scheme. However, by suggesting that
tinkering with our electoral processes and welfare payments can
better serve that function, Williams turns a blind eye to the
tenet of the republican tradition that motivated the adoption
of the Amendment: Political and civil rights are inseparable from
a right to arms. Our Constitution recognizes that those who have
arms are masters of the state, not those who are proportionately
represented or more firmly entrenched on the public dole.
Williams also recognizes the important role
of the Second Amendment in ensuring the subordination of the military
to civilian control. He is at least concerned about the possibility
of the "populace stand[ing] effectively disarmed before the might
of the state." But Williams
would tolerate that "nightmare" so long as courts "apply ... the
Constitution stringently against the military and police."
His belief that courts can subdue an ambitious military runs directly
counter to a central tenet espoused by every influential writer
in the republican tradition and perhaps best stated by Machiavelli:
"[I]t is unreasonable to expect that one who is armed will obey
willingly one who is unarmed; or that any unarmed man will remain
safe among armed servants."
The Framers of the Bill of Rights heeded this warning and placed
their faith in armed citizens as the ultimate bulwark against
tyranny. Williams would ignore the warning and place his faith
Williams is not alone in his
belief that the Second Amendment is an anachronism. Others have
argued that the notion that citizens bearing small arms could
offer effective resistance to a modern army is absurd.
It is interesting to note that, while dismissing the capabilities
of millions of armed citizens as a check on a modern army, they
suggest that nine lawyers can adequately fill that role.
Nevertheless, the question of whether
armed citizens can serve as an effective check on the state in
our nuclear age is an important one. The belief that an armed
citizenry would subdue aggressive rulers and keep them sensitive
to the rights of the people was perhaps the most important motivation
for the inclusion of the right to keep and bear arms in the Constitution.
Thus, the continued vitality of an armed populace as a check on
the modern state should have important implications on our interpretation
of the Second Amendment. As I have noted above, there is little
reason to dismiss the effectiveness of a modern militia.
Much to the contrary, the Little Report and the conflicts in Vietnam,
Bosnia, and Chechnya offer
compelling evidence that armed citizens can restrain, deter, or
repel a modern army.
Some, while acknowledging the effectiveness
of an armed citizenry as a check on government, have questioned
the prudence of such a scheme. Certainly, we ought not encourage
or facilitate armed uprisings whenever a particular group feels
shorted by the political process. Moreover, it is entirely legitimate
for the government to punish insurrection. Can such punishment
be consistent with a proper respect for the political function
of the right to arms?
Of course it can. The Second Amendment
does not guarantee immunity from punishment for insurrection;
it merely guarantees the capacity for resistance. And that capacity,
as a check on government, does not go (p.1144)unchecked
itself. The Constitution explicitly affirms the validity of punishing
insurrection, and the
potential of punishment is a check on the armed populace. It strongly
discourages armed resistance except in the cases of the most severe
encroachments by the government. This idea is best expressed in
the Declaration of Independence: "Prudence, indeed, will dictate
that Governments long established should not be changed [or challenged]
for light and transient causes; and accordingly all experience
hath shewn, that mankind are more disposed to suffer, while evils
are sufferable, than to right themselves by abolishing the forms
to which they are accustomed."
The moral function of the right to arms
was also recognized by Williams.
Nevertheless, Williams renders that function anachronistic by
analyzing it only in terms of the virtue instilled by formal militia
training and the self-sacrificial aspects of militia service,
while ignoring the "boldness, enterprise, and independence" that
the Framers believed was engendered by private gun ownership.
The moral dimension of the right to arms has more to do with the
Framers' beliefs about human nature than the training received
in militia service. The Second Amendment embodies a belief that
when an individual is rendered defenseless, his character is weakened
and corrupted. This belief
is no less valid today than it was in the eighteen century. Indeed,
it seems to be a universal law of nature that even applies to
other species. For example, the effects of disarmament and defenselessness
on character have even been recognized in felines, who, when declawed,
suffer from neuroses, insecurity, reclusiveness, and irritability.
Are we to assume that defenselessness has a lesser effect on the
human character? In short, it is easy for advocates to ridicule
or dismiss the value of an armed populace given our current circumstances.
But the evidence points strongly to the conclusion that, despite
our very different circumstances, armed citizens are still (p.1145)capable
of performing the military, political, civil, and moral functions
that were entrusted to them when the Second Amendment was adopted.
III. Interpreting the Second Amendment.An
abundance of literature detailing the historical and ideological
origins of the Second Amendment has been produced in the last
fifteen years. Though this literature offers excellent insights
into the meaning of the right to bear arms, a framework for a
Second Amendment jurisprudence consistent with those insights
has been lacking.
Don Kates's Handgun Prohibition and
the Original Meaning of the Second Amendment
presents one example of this incongruity. After providing an excellent
analysis of the philosophical and historical origins of the right
to keep and bear arms,
the language of the Second Amendment and the Bill of Rights,
and the proposal and ratification of the Second Amendment,
Kates concludes that the Amendment was designed to protect the
private ownership of arms "for three purposes: (1) crime prevention,
or what we would today describe as individual self-defense; (2)
national defense; and (3) preservation of individual liberty and
popular institutions against domestic despotism."
Thus it would seem logical to interpret the Amendment to protect
arms that are useful in performing any one of these functions.
In translating this understanding of these purposes into a more
concrete formulation of the right, though, Kates asserts that
"only such arms as have utility for all three purposes"
are constitutionally protected.
Kates also asserts that only such arms
as "are lineally descended from the kinds of arms the Founders
knew fall within the Amendment's (p.1146)guarantee."
Another authority suggests that the Amendment does not include
types of arms that could not have been foreseen by the Framers.
Nevertheless, no support for these limiting principles appears
in the many thorough treatments of the history of the Anglo-American
right to arms or in the adoption of the Second Amendment. These
limiting principles seem to stem more from the desire to avoid
the absurd result that the Second Amendment is absolute and guarantees
the right to own even nuclear weapons,
than from faithful adherence to the original understanding of
Adherence to a functional approach would
yield a theory of the Second Amendment more consistent with its
purposes. Recognizing that the original understanding of the Second
Amendment was based on the belief that arms should perform military,
political, civil, and moral functions,
and that that belief remains viable in modern times,
we ought to interpret the Amendment in a way that proscribes interference
with armed citizens' capacity to perform those functions. That
is, the four functions should serve as benchmarks for measuring
the constitutional limits of interference with the right to keep
and bear arms . To illustrate this functional
approach, I shall consider the federal ban of machineguns,
laws prohibiting the carrying of handguns,
federal laws prohibiting the sale or delivery of firearms to minors
and felons, and miscellaneous
burdens on weapons ownership.
A. The Federal Machinegun Ban.
A federal law makes it unlawful ... to sell or deliver ... to
any person [a] machinegun"
and "unlawful for any person to transfer or (p.1147)possess
a machinegun." This law
does not seriously hinder performance of the civil function because
other weapons better suited for self-defense remain available.
The primary concern raised by the ban of this militarily useful
weapon is that it will render armed citizens incapable of performing
their military and political roles. That is, being limited to
less potent arms may leave the citizenry too weak to deter an
ambitious tyrant (foreign or domestic) backed by a modern army.
The touchstone here is the military capability of the armed citizenry
vis-a-vis a modern army.
To effectively perform the military and
political functions, the citizenry need not be capable of defeating
a modern army--it merely needs to be a credible counterbalance
to such a force. A merely
credible show of force is sufficient because the tyrant contemplating
armed conflict must weigh more than just the possibility of defeat.
"The decision to use military force is not determined solely by
whether the contemplated benefits can be successfully obtained
through the use of available forces, but rather is determined
by the ratio of those benefits to the expected costs."
Before attempting to conquer an armed people, a tyrant must contemplate
the casualties his own forces will suffer, the likelihood of prolonged
resistance and civil war, the difficulty of governing during and
after such a conflict, and many other difficulties. Even if the
tyrant decides that these costs are not too great, his soldiers
may not necessarily agree and follow him. The widespread ownership
of arms increases the potential costs of military aggression,
thereby making such aggression less likely.
In the late twentieth century, notwithstanding
the sophisticated weaponry of modern armies, citizens armed with
small, relatively basic, firearms can still be an effective deterrent
and can offer effective resistance if needed.
Thus, at this point in time, it seems unlikely that restrictions
such as the ban on machineguns would run afoul of the Second Amendment.
By implication, weapons even more potent than the machinegun can
be prohibited without undermining the military or political functions
of an armed citizenry, thus avoiding the ad absurdum and
ad horribilus implications of an unlimited right.
Nevertheless, a broader ban, of, for instance, all semiautomatic
firearms, might tilt the balance of (p.1148)power
so heavily against armed citizens that it would fall within the
scope of the Amendment's prohibition. It is also possible that,
as weapons technology progresses, and armies possess more sophisticated
weaponry, what was formerly beyond the Constitution's protection
(e.g., machineguns) might then fall within it to preserve
B. Prohibitions on Carrying
Handguns. In many jurisdictions, citizens are effectively
denied the right to carry handguns when they leave their homes.
It is immediately apparent that such laws hinder the civil function
by severely hampering law-abiding citizens' ability to defend
themselves against criminal attacks.
The laws' moral and political effects are perhaps less obvious.
Studies have shown a rising fear of crime,
and Americans have demonstrated a willingness to disregard essential
rights and grant broad powers to the police to protect them.
One illustration of this phenomenon is the eagerness of residents
of high crime areas to forego their Fourth Amendment rights by
endorsing aggressive police programs. In many large cities, the
police operate with a "free-ranging mandate to stop cars and search
bodies," and with "impunity from criticism because residents of
high-crime neighborhoods, too scared to go outside when the street
lights come on, have demanded the programs."
Perhaps this is also an illustration of (p.1149)the
diminished reverence for freedom and capacity for democratic government
that Jefferson and the First Continental Congress associated with
being disarmed. C.
Laws Prohibiting Minors and Felons from Owning Firearms.
laws prohibit the sale or delivery of firearms to minors and felons,
but such laws do not interfere with any function of the armed
citizenry. As Kates explains,
In classical republican political philosophy, the concept
of a right to arms was inextricably and multifariously tied to
that of the "virtuous citizen." Free and republican institutions
were believed to be dependent upon civic virtu which, in
turn, depended upon each citizen being armed--and, therefore,
fearless, self-reliant and upright.... One implication of this
emphasis on the virtuous citizen is that the right to arms does
not preclude laws disarming the unvirtuous citizens (i.e., criminals)
or those who, like children or the mentally unbalanced, are deemed
incapable of virtue.
D. Miscellaneous Burdens
on Weapon Ownership. Gun control strategies have often
involved measures that do not prohibit gun ownership but make
it more costly or troublesome to obtain arms or ammunition. Senator
Moynihan's recent proposal to impose a special tax on ammunition
exemplifies this strategy. Other such burdens include the Brady
Law's five-day waiting period for the purchase of a firearm,
and cumbersome and expensive licensing regimes, which are in force
in many jurisdictions.
A functional approach can be employed
to determine if such measures are indeed a hindrance to the performance
of the military, political, civil, or moral functions of private
arms ownership. A finding of such hindrance would not, however,
end the inquiry. "As [the Supreme Court's] jurisprudence relating
to all liberties ... has recognized, not every law (p.1150)which
makes a right more difficult to exercise is, ipso facto,
an infringement of that right."
If it is determined that the law hinders the exercise of a constitutionally
protected activity, further inquiry is necessary to determine
whether the hindrance exceeds constitutional bounds. There are
several doctrinal approaches that could be utilized for such inquiry.
For example, such inquiry could take the form of the least restrictive
means test, strict scrutiny,
or the "undue burden" analysis that the Supreme Court has developed
for determining the constitutionality of restrictions on the exercise
of the right to an abortion.
Thus, a functional approach does not compel absolutism, as it
is reconcilable with many conventional limiting principles. The
last fifteen years have seen the debate over arms and rights in
America evolve from a simplistic quarrel over whether the Second
Amendment protects private arms ownership to a more sophisticated
debate over the scope of that right.
Conclusion. This current debate raises two
central issues. First, what interests were the Amendment intended
to protect? A functional analysis of the roles of arms in a free
society, as commonly understood at the time of the Amendment's
ratification, indicates that widespread arms ownership was intended
to deter and, if necessary, repel foreign aggressors,
prevent domestic tyranny by sensitizing the rulers to the rights
of the people, preserve
the natural right of self-defense,
and facilitate the development of civic virtue and moral character
essential for self-governance.
Second, in light of this understanding and our modern circumstances,
how are we to interpret the Second Amendment? The interpretation
most consistent with that understanding is one that focuses on
preserving the citizenry's capability of performing those roles.
Such an interpretation avoids the absurd and (p.1151)horrible
results of an absolute right to arms
while protecting the rights and safety of citizens.
[+] An earlier version
of this Note won first prize in the 1995 Firearms Civil Rights
Legal Defense Fund Scholarship Contest. I gratefully acknowledge
the helpful suggestions of Robert Cottrol, Don Kates, Joseph
Olson, and numerous other participants at the 1995 New Orleans
Conference of Academics for the Second Amendment. I am also
grateful to Johnny Carter for his valuable comments on several
earlier drafts, and to Steve Maloney for his help in locating
some of the more obscure sources cited in this Note.
L. No. 103-159, § 102, 107 Stat. 1536 (codified at 18
U.S.C. § 922(s)-(t) (1994)) (requiring a
five-day waiting period for the purchase of a handgun).
L. No. 103-322, §§ 110101-110106, 108 Stat. 1796,
1996-2010 (codified at 18 U.S.C. §§
921(a)(30), 922(v)-(w) (1994)) (outlawing the
manufacture, transfer, or possession of semiautomatic assault
weapons and the transfer or possession of large capacity ammunition
feeding devices); see also Ann Devroy, Crime
Bill is Signed with Flourish, Wash. Post,
Sept. 14, 1994, at A4 ("President Clinton yesterday signed
the bitterly contested ... bill that bans several assault weapons
...."); Katharine Q. Seelye, As Senate Debates Crime
Bill, Weapons Ban Is the Focus, N.Y.
Times, Aug. 23, 1994, at A14 (detailing the passage
of the assault weapons ban in the House).
 A recent U.S.
News & World Report poll asked, "Do you agree that the
Constitution guarantees you the right to own a gun?" 75% agreed;
18% disagreed. Gordon Witkin, The Fight to Bear Arms,
U.S. News & World Rep., May 22,
1995, at 29; see also Don B. Kates, Jr.,
Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204,
(1983) (citing two national surveys indicating that 70%
to 87% of Americans believe the Constitution gives individuals
the right to keep and bear arms).
William J. Clinton, State of the Union Address (Jan. 24, 1995),
in 141 Cong. Rec. H584, H587
(daily ed. Jan. 24, 1995) (emphasis added).
Const. amend. II.
 The Supreme Court
has repeatedly denied certiorari in Second Amendment cases.
See infra note 12.
 See Sanford
Levinson, The Embarrassing Second Amendment, 99 Yale
L.J. 637, 639-40
(1989) (noting the absence of significant discussion
of the Second Amendment in "law reviews, casebooks, and other
scholarly legal publications" (footnotes omitted)). Levinson
suspects the following:
the best explanation for the
absence of the Second Amendment from the legal consciousness
of the elite bar, including that component found in the legal
academy, is derived from a mixture of sheer opposition to
the idea of private ownership of guns and the perhaps subconscious
fear that altogether plausible, perhaps even "winning," interpretations
of the Second Amendment would present real hurdles to those
of us supporting prohibitory regulation.
Id. at 642
 See American
Civil Liberties Union, Policy Guide of the American Civil Liberties
Union 95-96 (1993) (Policy #47) ("Except for lawful
police and military purposes, the possession of weapons by individuals
is not constitutionally protected.").
 Robert A.
Sprecher, The Lost Amendment, 51 A.B.A. J. 554
George F. Will, America's Crisis of Gunfire, Wash.
Post, Mar. 21, 1991, at A21 (editorial) ("[G]un
control advocates who want to square their policy preferences
with the Constitution should face the need to deconstitutionalize
the subject by repealing the embarrassing amendment.").
e.g., Warren Spannaus, State Firearms Regulation
and the Second Amendment, 6 Hamline L.
Rev. 383, 390 (1983) (embracing the states' right
theory to justify gun control measures).
e.g., United States v. Johnson, 497 F.2d
548, 550 (4th Cir. 1974); Cody v. United
States, 460 F.2d 34, 37 (8th Cir.), cert. denied, 409
U.S. 1010 (1972); Stevens v. United
States, 440 F.2d 144, 149 (6th Cir. 1971); Vietnamese
Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp.
198, 210 (S.D. Tex. 1982); United States
v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981), aff'd,
740 F.2d 952 (1st Cir.), cert. denied,
469 U.S. 842 (1984); Eckert
v. Pennsylvania, 331 F. Supp. 1361, 1362 (E.D. Pa. 1971), aff'd,
474 F.2d 1339 (3d Cir.), cert. denied,
410 U.S. 989, and cert. denied,
411 U.S. 920 (1973) (all endorsing
the states' right theory).
 Of the 34 law
review articles published since 1980 that offer substantial discussion
of the Second Amendment, only 3 endorse the states' right theory.
All 3 appeared in symposia in which anti-gun groups were invited
to submit articles detailing their positions. Two were written by
lobbyists for anti-gun groups. See Keith A. Ehrman
& Dennis A. Henigan, The Second Amendment in the Twentieth
Century: Have You Seen Your Militia Lately?, 15 U.
Dayton L. Rev. 5
(1989); Dennis A. Henigan, Arms, Anarchy and the
Second Amendment, 26 Val. U. L. Rev.
(1991). The third was written by a politician. See
Spannaus, supra note 11
(Minnesota Attorney General).
In contrast, articles endorsing the view that the
Second Amendment protects an individual right have been authored
by some of the major figures in constitutional law and have
been published in the most prestigious law reviews. See,
e.g., Akhil R. Amar, The Bill of Rights and
the Fourteenth Amendment, 101 Yale L.J.
1193, 1205-11, 1261-62 (1992); Akhil R. Amar, The
Bill of Rights as a Constitution, 100 Yale
L.J. 1131, 1164
(1991) [hereinafter Amar, Bill of Rights as a Constitution];
David I. Caplan, The Right of the Individual to Bear
Arms: A Recent Judicial Trend, 1982 Det.
C.L. Rev. 789; Robert
J. Cottrol & Raymond T. Diamond, The Second Amendment:
Toward an Afro-Americanist Reconsideration, 80 Geo.
L.J. 309 (1991); Robert
Dowlut, Federal and State Constitutional Guarantees to Arms,
15 U. Dayton L. Rev. 59
(1989); Robert Dowlut, The Current Relevancy
of Keeping and Bearing Arms, 15 U. Balt.
L.F. 32 (1984); Robert Dowlut, The Right
to Arms: Does the Constitution or the Predilection of Judges
Reign?, 36 Okla. L. Rev. 65
(1983); Richard E. Gardiner, To Preserve liberty--A
Look at the Right to Keep and Bear Arms, 10 N.
Ky. L. Rev. 63 (1982);
Alan M. Gottlieb, Gun Ownership: A Constitutional Right,
10 N. Ky. L. Rev. 113
(1982); Stephen P. Halbrook, Rationing Firearms
Purchases and the Right to Keep Arms, 96 W.
Va. L. Rev. 1 (1993); Stephen P. Halbrook,
The Right of the People or the Power of the State: Bearing
Arms, Arming Militias, and the Second Amendment, 26 Val.
U. L. Rev. 131 (1991);
Stephen P. Halbrook, Encroachments of the Crown on
the Liberty of the Subject: Pre-Revolutionary Origins of the
Second Amendment, 15 U. Dayton L. Rev.
91 (1989); Stephen P.
Halbrook, What the Framers Intended: A Linguistic Analysis
of the Right to Bear Arms, Law &
Contemp. Probs., Winter 1986, at 151;
Stephen P. Halbrook, To Keep and Bear Their Private
Arms: The Adoption of the Second Amendment, 1787-1791, 10
N. Ky. L. Rev. 13
(1982); Stephen P. Halbrook, The Jurisprudence
of the Second And Fourteenth Amendments, 4 Geo.
Mason U. L. Rev. 1 (1981);
David T. Hardy, The Second Amendment and the Historiography
of the Bill of Rights, 4 J.L. & Pol.
1 (1987); David T.
Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence
of the Second Amendment, 9 Harv. J.L.
& Pub. Pol'y 559 (1986)
[hereinafter Hardy, Armed Citizens]; Don B. Kates,
Jr., The Second Amendment and the Ideology of Self-Protection,
9 Const. Comm. 87
(1992); Don B. Kates, Jr., The Second Amendment:
A Dialogue, Law & Contemp. Probs.,
Winter 1986, at 143, 143-45;
Kates, supra note 3;
Levinson, supra note 7;
Nelson Lund, The Second Amendment, Political Liberty,
and the Right to Self-Preservation, 39 Ala.
L. Rev. 103 (1987);
Joyce L. Malcolm, 54 Geo. Wash. L.
Rev. 452 (1986) (reviewing Stephen
P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional
Right (1984)); Joyce L. Malcolm,
The Right of the People to Keep and Bear Arms: The Common
Law Tradition, 10 Hastings Const.
L.Q. 285 (1983); Thomas
M. Moncure, Jr., Who is the Militia--The Virginia Ratification
Convention and the Right to Bear Arms, 19 Lincoln
L. Rev. 1 (1990); Elaine
Scarry, War and the Social Contract: Nuclear Policy, Distribution,
and the Right to Bear Arms, 139 U. Pa.
L. Rev. 1257 (1991); Robert E. Shalhope,
The Armed Citizen in the Early Republic, Law
& Contemp. Probs., Winter 1986, at 125;
William Van Alstyne, The Second Amendment and the Personal
Right to Arms, 43 Duke L.J. 1236
David C. Williams, Civic Republicanism
and the Citizen Militia: The Terrifying Second Amendment,
101 Yale L.J. 551
(1991), takes an unusual position that is difficult to
classify but is addressed below at some length. See infra
notes 15, 90-111 and
George Anastaplo, Amendments to the Constitution
of the United States: A Commentary, 23 Loy.
U. Chi. L.J. 631, 688-93 (1992) does not explicitly
endorse either the individual or states' right view. Anastaplo
does opine that what is to be done about gun control is a political
rather than constitutional question. Id. at 693.
Nevertheless, he seems to regard the Second Amendment as being
somewhat analogous to the First. He says that
[t]o emphasize a personal right
here [under the Second Amendment], with little or no regard
for the obligations and demands of the community in protecting
itself, is something like putting the emphasis in the First
Amendment upon the physical act of speaking without regard
for the primary public-discourse aspect of the traditional
right to "freedom of speech."
Id. at 691.
Instead of erasing the Second Amendment from my copy of the
Constitution, I will attempt, throughout this Note, to show
how a proper "regard for the obligations and demands of the
community in protecting itself" might shape the contours of
the individual right to arms.
e.g., Robert J. Cottrol, Gun
Control and the Constitution at xxxv (1994) ("To
claim, as some have, that the Second Amendment was meant to
protect a body like the National Guard, is to severely misread
the historical record in ways so fundamental as to warrant almost
e.g., id. (explaining the refined states' right
theory which holds that "since the militia has essentially disappeared,
the individual right also ceases to exists"); see also
Williams, supra note 13, at
586 (asserting that
because it assumes "a universal militia of a type which does
not exist today ... the literal wording of the Second Amendment
e.g., Roy G. Weatherup, Standing Armies and
Armed Citizens: An Historical Analysis of the Second Amendment,
2 Hastings Const. L.Q. 961,
1000 (1975) (arguing
that the Second Amendment "was designed solely to protect the
e.g., Levinson, supra note 7,
at 651 (stressing the
republican rationale of keeping arms to deter and resist government
e.g., Cottrol & Diamond, supra note
13 (stressing the importance of
the right to keep and bear arms for self-defense, particularly
for segments of the minority community that, historically, have
not received adequate protection from the police).
e.g., Kates, supra note 3,
at 268 (concluding that
the Amendment was designed to protect the private ownership
of arms "for three purposes: (1) crime prevention, or what we
would today describe as individual self-defense; (2) national
defense; and (3) preservation of individual liberty and popular
institutions against domestic despotism").
supra text accompanying note
Const. amend. II.
The Amendment also speaks of a "well regulated Militia," which
could be read as the means by which the security of a free state
is to be protected. However, any distinction between the "Militia"
and the citizenry at-large is unwarranted.
Nowadays, it is quite common
to speak loosely of the National Guard as "the state militia,"
but 200 years ago, any band of paid, semiprofessional part-time
volunteers, like today's Guard, would have been called "a
select corps" or "select militia"--and viewed
in many quarters as little better than a standing army. In
1789, when used without any qualifying adjective, the "militia"
referred to all Citizens capable of bearing arms.... [So]
"the militia" is identical to "the people" ....
Amar, Bill of Rights
as a Constitution, supra note 13,
at 1166 (emphasis in original)
(footnotes omitted). Thus, throughout this Note, I will use
the terms "militia," "people," "armed citizen(s) (ry)," and
"armed populace" interchangeably.
12 The Papers of James Madison
58 (Charles F. Hobson & Robert A. Rutland eds., 1979) (editor's
note); David T. Hardy, Origins
and Development of the Second Amendment 71 (1986)
[hereinafter Hardy, Origins]; Hardy,
Armed Citizens, supra note 13,
at 605-06 (all discussing
Madison's reliance on suggestions from state conventions).
 12 The
Papers of James Madison, supra note 23,
at 58; Hardy, Origins,
supra note 23, at 71; Hardy,
Armed Citizens, supra note 13,
Schwartz, The Great Rights of Mankind: A History of the American
Bill of Rights 160-91 (1977).
 Madison himself
had stated that he favored the adoption of a Bill of Rights
only because it was "anxiously desired by others." 11
The Papers of James Madison, supra
note 23, at 297. Madison's draft
of the Bill of Rights was thus intended to "embody a present
consensus of opinion about the obvious rights of human beings."
Hardy, Armed Citizens, supra note 13,
Armed Citizens, supra note 13,
at 571 & n.55.
at 586 n.128.
 As David Hardy
It was an age when Patrick
Henry might, although admittedly lacking in legal knowledge,
gain admission to the bar by his grasp of history and logic;
when a solid knowledge of Latin and Greek, and of such authors
as Homer, Demonsthenes, and Xenophon, was an entrance requirement
for many colleges; and when Jefferson might spend his spare
time accumulating one of the best historical libraries in
the colonies and Madison his correcting footnotes in Latin
at 586-87 (footnotes
omitted); see also Lawrence
D. Cress, Citizens in Arms: The Army and the Militia in American
Society to the War of 1812, at 35 (1982) (describing
the influence that both Whig and Opposition authors had on colonial
political thought through the dissemination of works to "political
leaders, public orators, and pamphleteers too numerous to mention");
Caroline Robbins, The Eighteenth-Century
Commonwealthman 102 (1959) (noting that Americans
like James Madison and John Adams studied the writings of liberal
Whig Robert Molesworth "when they were considering the problems
of the New World").
Robert E. Shalhope, The Ideological Origins of the
Second Amendment, 69 J. Am. Hist.
601-05 (1982) (tracing
the libertarian notion of a right to bear arms from the Florentine
tradition of the "citizen-warrior as the staunchest bulwark
of a republic"). On the relationship of the Florentine, libertarian,
and republican traditions, see generally J.G.A.
Pocock, The Machiavellian Moment: Florentine Political Thought
and the Atlantic Republican Tradition 199-213, 290-92
infra section I(B)(1).
infra section I(B)(2).
infra section I(B)(3).
infra section I(B)(4).
James B. Whisker, The Citizen-Soldier
and United States Military Policy 3 (1979) (noting
that the medieval citizen-militia had been fully structured
by the end of the tenth century).
Armed Citizens, supra note 13,
at 562. ("It is likely,
though, that 'the obligation of Englishmen to serve in [the
militia (or fyrd)] is older than our oldest records.'"
(quoting J. Bagley & P. Rowly,
A Documentary History of England 1066-1540, at 152 (1965)));
see Whisker, supra
note 36, at 4-6 (discussing the
organization and training of the select and great fyrd
and noting that the citizens in the select fyrd were
required to provide their own weapons).
 See generally
Joyce L. Malcolm, To Keep and Bear
Arms: The Origins of an Anglo American Right 19-20, 31,
61-62 (1994) (noting the military role of the militia
in the English Civil War, the Interregnum, and the Second Dutch
Shalhope, supra note 31, at
(describing a libertarian theme of American Republicanism as
a "fear of standing armies and the exaltation of militias composed
of ordinary citizens"); see also 2 James
Burgh, Political Disquisitions: Or, An Enquiry into Public Errors,
Defects, and Abuses 345 (Philadelphia, Robert Bell &
William Woodhouse 1775) ("[T]his author prefers a militia
to an army."); David Hume, Idea
of a Perfect Commonwealth, in Hume:
Political Essays 221, 230 (Knud Haakonssen, ed., 1994)
("[W]ithout a militia, it is vain to think any free government
will ever have security or stability."); Richard
Price, Observations on the Importance of the American Revolution
and the Means of Making it a Benefit to the World 9 (Boston,
True & Weston 1818) ("Free states ought to be bodies
of armed citizens, well regulated, and well disciplined, and
always ready to turn out, when properly called upon, to execute
the laws, to quell riots, and to keep the peace.").
Daniel J. Boorstin, The Americas: The
Colonial Experience 361 (1958) ("From their American
experience the colonies had come to believe that defense began
at home.... [T]hey believed that the British Constitution hallowed
their assertion that treasury and army must be locally controlled.");
David Hawke, Colonial Experience
396 (1969) (noting that Pennsylvania pacifists quickly
learned that the British Army was not going to adequately protect
them in the French and Indian War, and that only local militias
would do the job); Gordon S. Wood,
The Radicalism of the American Revolution 163-64 (1992)
(noting that, during the Seven Years War in the 1750s, New England
militias outraged the British commander by refusing to join
in under his command, instead preferring the free, contractual
agreements inherent in the local militias).
Allen, An Oration upon the Beauties of Liberty, or the Essential
Rights of the Americans at xiv (2d ed. 1773), microfilmed
on 3 Early American Imprints 1639-1800, No. 13016
(Clifford K. Shipton ed., American Antiquarian Society).
 1 Journals
of Congress 163 (1800-1801).
Armed Citizens, supra note 13,
Declaration of Independence para. 2 (U.S. 1776).
U.S. Const. pmbl.
("We the People ...."); id. amend. IX
("The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people."); id. amend. X ("The
powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.").
 3 John
Adams, A Defence of the Constitutions of Government of the United
States of America 472 (photo. reprint 1971) (London,
C. Dilly & John Stockdale 1788) (quoting Marchamont
Nedham, The Excellency of a Free State, or the Right Constitution
of a Commonwealth (1656)); See also
2 Burgh, supra note 39,
at 345 ("Those, who have the command of the arms in a
country, says Aristotle, are masters of the state ....").
Hardy, Origins, supra
note 23, at 47; see also
supra text accompanying note
Fletcher, The Political Works of Andrew Fletcher, Esq.
9 (London, J. Bettenham
 Joel Barlow
described the link between democracy, equality, and arms:
Only admit the original, unalterable
truth, that all men are equal in their rights, and the foundation
of every thing is laid; to build the superstructure requires
no effort but that of natural deduction. The first necessary
deduction will be, that the people will form an equal representative
government.... Another deduction follows, that the people
will be universally armed.... A people that legislate for
themselves ought to be in the habit of protecting themselves;
or they will lose the spirit of both.
Barlow, Advice to the Privileged Orders in the Several States
of Europe, Resulting from the Necessity and Propriety of a General
Revolution in the Principle of Government pt. 1, at 69-70,
72 (New York, Childs & Swaim 1792) (emphasis omitted).
e.g., 1 William Blackstone,
Commentaries *143-44 ("The fifth and last auxiliary
right of the subject ... is also declared by the [1689 Declaration
of Rights] and it is indeed, a public allowance under due restrictions,
of the natural right of resistance and self-preservation ....").
During the debate over the 1689 Declaration the private ownership
of arms for self-defense was much less controversial than ownership
of arms for political reasons.
[D]ownplaying the role of the
armed citizenry in maintaining liberty, the [Declaration]
claimed for the individual a right to be armed. In light of
this shift, it is particularly ironic that some modern American
lawyers have misread the English right to have arms as merely
a "collective" right inextricably tied to the need for a militia.
In actual fact, the Convention retreated steadily from such
a position and finally came down squarely, and exclusively,
in favour of an individual right to have arms for self-defence.
Not only was the militia left out of the Declaration of Rights,
but even the notion that private arms were necessary for common,
as opposed to individual, defence was excluded.
supra note 38, at 119-20
supra note 13, at 309.
Armed Citizens, supra note 13,
at 581 n.103
(quoting 5 Parl. Hist. Eng.
182-83 (1688-1689) (alteration in original)).
supra text accompanying note
 2 Burgh,
supra note 39, at 390. The
influential American jurist St. George Tucker expressed a similar
sentiment in 1 William Blackstone's
Commentaries, with Notes of Reference to the Constitution and
Laws, of the Federal Government of the United States; and of
the Commonwealth of Virginia pt. 1 app. at 300 (photo.
reprint) (St. George Tucker ed., Philadelphia, Birch & Small
1803) [hereinafter Tucker's Notes
on Blackstone] ("The right of self defence is the first
law of nature ....").
P. Halbrook, A Right to Bear Arms: State and Federal Bills of
Rights and Constitutional Guarantees 21-22 (1989) (quoting
Pa. Const. of 1776,
Declaration of Rights art. XIII). This provision
was modified by the Pennsylvania Declaration of Rights of 1790,
but the protection of the right to be armed for self-defense
was no less certain. The later declaration stated "[t]hat the
right of the citizens to bear arms in defense of themselves
and the state shall not be questioned." Pennsylvania
Declaration of Rights, art. XXI (1790).
Const. of 1793, ch. 1, art. 15 (noting that the
relevant provision originally appeared in Vt.
Const. of 1777, ch. 1, art. 15).
Halbrook, supra note
55, at 22-23 (analyzing the adoption
of a right to bear arms in the states of Pennsylvania, North
Carolina, Vermont, and Massachusetts that incorporated the "common
supra note 50.
of the Convention for Framing a Constitution of Government for
the State of Massachusetts Bay 41, 226 (Boston, Dutton
& Wentworth 1832) (1779-1780) [hereinafter Massachusetts
Halbrook, supra note
55, at 42 (noting that the towns
of Northampton and Williamsburg proposed alterations to the
amendments that would include a reference to self-defense as
well as to the common defense).
Convention, supra note 59,
supra note 55, at 42.
 2 The
Documentary History of the Ratification of the Constitution
597-98 (Merrill Jensen ed., 1976) (emphasis added).
Dumbauld, The Bill of Rights and What It Means Today
Schwartz, supra note
25, at 121-24, 156-59 (noting that
the compendium of state demands, which Madison had at hand when
drafting the Bill of Rights, included the proposals of the Pennsylvania
minority); see also Irving Brant,
James Madison, Father of the Constitution 1787-1800,
at 264 (1950); Hardy, Origins,
supra note 23, at 71; Hardy,
Armed Citizens, supra note 13,
at 605-06; Shalhope,
supra note 31, at 608
(all noting that Madison worked from the lists of amendments
suggested by state conventions).
supra note 50.
1 Tucker's Notes on Blackstone
pt. 1 app. at 300 ("The right of self-defense is the
first law of nature.... Whenever standing armies are kept up,
and the right of the people to keep and bear arms is, under
any color or pretext whatsoever, prohibited, liberty, if not
already annihilated, is on the brink of destruction."); Stephen
P. Halbrook, That Every Man Be Armed 89-90 (1984)
(noting unanimity of opinion on this understanding of the right
to bear arms).
of the First Session of the Senate of the United States of America
129 (New York, Thomas Greenleaf 1789).
Hardy, Origins, supra
note 23, at 76 ("No record was kept
of the Senate debates until 1794. As a result, we do not know
the substance of that body's deliberations on the Bill of Rights.").
supra note 31, at 603.
supra text accompanying note
supra note 31, at 604.
at 604, 604-05.
supra note 49, pt. 1, at 68.
 2 Adam
Smith, An Inquiry into the Nature and Causes of the Wealth of
Nations 373 (London, W. Strahan & T. Cadell 1776).
 1 Journals
of Congress 163 (1800-1801).
Life and Selected Writings of Thomas Jefferson 349 (Adrienne
Koch & William Peden eds., 1993).
Don B. Kates, Jr., The Second Amendment: A Dialogue,
Law & Contemp. Probs., Winter
1986, at 143, 147
("As the Founders would have conceived it, the yeoman repelling
intruders from his dwelling was, with the same arms, acting
both in his own and the common defense--whether those intruders
were felons, oppressive officials, or enemy soldiers.").
e.g., Wendy Brown, Guns, Cowboys, Philadelphia
Mayors, and Civic Republicanism: On Sanford Levinson's The
Embarrassing Second Amendment, 99 Yale L.J.
661, 665 (1989) ("[The] vision of an armed citizenry,
collectively resisting the excesses of state power on behalf
of itself as a community, is at best nostalgic, and at worst
dangerously naive ...."); Ehrman & Henigan, supra
note 13, at 40
(asserting that the right to keep and bear arms is an anachronism
inapplicable to modern times); Williams, supra
note 13, at 586
("[U]nder modern conditions, the literal wording of the Second
Amendment is meaningless.").
e.g., Brown, supra note 80,
at 665 ("[O]f what serious assistance are handguns and
machine guns for the defense of the state in a nuclear age?"
Michael L. Lanning & Dan Cragg,
Inside the VC and the NVA: The Real Story of North Vietnam's
Armed Forces 101 (1992) ("Beginning in the late
1950's the VC relied on outdated equipment, primitive weapons,
and leftover ammunition from the war against the French.");
James W. McCoy, Secrets of the Viet
Cong 3 (1992) ("[By] beat[ing] back the finest
troops and equipment that the west could send against it[,]
... the North Vietnamese Army ... proved that warfare doctrines
which emphasized human assets and maneuver were superior to
the most technologically advanced methods available.").
Sid Balman Jr., Military Experts Advise Against Armed
Intervention in Bosnia, UPI, Aug. 11, 1992, available
in LEXIS, News Library, UPI File (reporting that
the aide cited widespread ownership of arms, in addition to
the presence of multiple factions and racial hatred, as a reason
not to intervene).
Specter, For Russia's Troops, Humbling Days, N.Y.
Times, Jan. 8, 1995, at A1.
Arthur D. Little Report: A Study of The Activities and Missions
of the NBPRP (1966), reprinted in Whisker,
supra note 36, at 47, 57.
Whisker notes that the Little Report "was not written for a
pro-guns organization" and "is of the highest professional standards."
Id. at ix.
id. at 58.
supra note 13.
Machiavelli, The Prince 88 (George Bull trans., Penguin
Books 1968) (1514).
 Contrast Williams's
faith in the ability of courts to control the military with
the views of a Revolutionary war veteran and friend of both
Jefferson and Madison:
Arms can only be controlled
by arms. An Armed nation only can keep up an army, and also
maintain its liberty.... An armed nation only can protect
its government against an army. Unarmed, and without an army,
a nation invites invasion. Unarmed, and with an army, it invites
usurpation. All nations lose their liberties by invasion or
Taylor, An Inquiry into the Principles and Policy of the Government
of the United States 178, 180 (1814).
e.g., Brown, supra note 80,
at 665 (posing the question: "[O]f what serious assistance
are handguns and machine guns for the defense of the state in
a nuclear age?" (emphasis omitted)).
supra text accompanying note
supra text accompanying notes
again the current conflict in Chechnya. Feeling that the Russian
government has violated their rights, the Chechans have turned
to the ultimate arbiter of their rights--their arms. Khasan
Aliyev, a Chechan fighter, says he has taken up arms because
"the Russians have no right to treat us this way." Specter,
supra note 86, at A11. Aliyev's
tone is clear: "We will wait for them wherever they are. How
long will it have to go on before they realize we won't surrender?"
Id. One wonders how zealously Aliyev would assert what
he believes to be his rights were he disarmed and facing the
supra text accompanying notes
U.S. Const. art. I,
§ 8, cl. 15 (granting Congress the power "To provide
for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions"); id.
art. III, § 3, cl. 2 ("The Congress shall have Power
to declare the Punishment of Treason .... "); id. amend.
XIV, §§ 3, 4 (prohibiting persons that "have
engaged in insurrection or rebellion" from holding office and
voiding debts "incurred in aid of insurrection or rebellion
against the United States").
Declaration of Independence para. 2 (U.S. 1776).
Williams, supra note 13, at
579-81 (noting that
service in the militia involved self-sacrifice and instilled
civic virtue in the citizenry).
supra text accompanying
supra text accompanying
County Humane Society, Declawing Cats: Manicure or Mutilation?
1 (on file with the Texas Law Review). For an
illustration of similar symptoms of defenselessness exhibited
by humans, see infra text
accompanying note 141.
it is worth mentioning the burden of proof on this issue. The
burden of proof, I would think, must fall on those who urge
that the Second Amendment's protection of private arms ownership
be disregarded because changing circumstances have rendered
it an inefficacious means to the desired end. In our system,
we generally regard constitutional rights as being fairly important.
One response to the changed-circumstances argument is that Article
V of the Constitution sets out the procedures for adapting
the Constitution to changing circumstances. Whatever the merits
of that response, it seems that at a bare minimum, if changed
circumstances are to abrogate a constitutional right, the bases
for the abrogation should be clearly established. That has not
been the case with regard to the Second Amendment.
supra note 3.
at 259 (emphasis in original).
Later, Kates defends this assertion by arguing that "[s]ince
[in the late-eighteenth century] citizens would depend upon
the same kinds of weaponry for performing all three functions
(individual defense, military defense, and law enforcement)
of what the Founders saw as an integral whole, the arms contemplated
by the amendment are such as are suitable for all three functions."
Kates, supra note 79, at 148.
supra note 3, at 259.
Armed Citizens, supra note 13,
at 636 (remarking that
restrictions on modern weaponry--weapons unforeseen at the time
of the Framers--"do no violence to the freedoms the Framers
sought to protect").
Kates, supra note 3, at 259
("This triple test resolves the ad absurdum and ad
horribilus results ... sometimes viewed as flowing from
an individual right interpretation of the amendment.").
see Hardy, Armed Citizens, supra note
13, at 636
(arguing that the Second Amendment's guarantee should not apply
to weapons that pose qualitatively different social costs than
the weapons familiar to the Framers).
supra Part I.
supra Part II.
U.S.C. § 922(b)(4), (o) (1994).
infra note 137.
U.S.C. § 922(b)(1) (1994).
 Such burdens
include various taxing and licensing regimes. See, e.g.,
infra text accompanying notes
U.S.C. § 922(b), (b)(4) (1994).
§ 922(o); see also 26 U.S.C.
§ 5845(b) (1994) (defining the term "machinegun").
supra note 13, at 113-14.
at 115 (emphasis in
supra text accompanying notes
84-85 (Illustrating the deterrent
effect that the widespread possession of arms in Bosnia had
on the United States's decision whether to intervene in the
supra note 83 (noting
the success of the poorly armed North Vietnamese Army and Viet
Cong against the well-equipped United States armed forces);
text accompanying note 86
(illustrating the resistance that poorly armed Chechan rebels
have maintained against the superior firepower of the Russian
supra note 121 and accompanying
 New York,
for example, has criminalized the possession of "any firearm,"
N.Y. Penal Law §
265.01(1) (McKinney Supp. 1996), and classified the possession
of "any loaded firearm" as a felony. Id.
§ 265.02 (McKinney 1989). Although New York has
a licensing provision in its code, that provision grants almost
total discretion to the local sheriff whether to issue the permit
or not. See id. § 400.00(1)
(McKinney Supp. 1996) (requiring that "no good cause
exist for the denial of the license"). Permits are routinely
denied to all but the rich and famous or politically connected.
See Kates, supra note 3,
at 208 n.17
(noting that the list of permit holders in New York City is
composed of people like Arthur Ochs Sulzberger (publisher of
The New York Times), Nelson Rockefeller, and others noted
for their "political influence, wealth, [or] social prominence").
Another example is California, where it is illegal to carry
firearms concealed on the person or in a vehicle. Cal.
Penal Code § 12025(a) (West Supp. 1996).
Again, the availability of licenses is subject to the unfettered
discretion of the local sheriff. See id.
§ 12050 ("[The local sheriff,] upon proof that the
person applying is of good moral character, that good cause
exists for the issuance, and that the person applying is a resident
of the county, may issue to that person a license to
carry a pistol, revolver, or other firearm capable of being
concealed." (emphasis added)).
see Kates, supra note 3,
at 267 (recognizing the
civil function of the right to bear arms but, nonetheless, asserting
that prohibiting arms-carrying outside the home is constitutionally
Bureau of Justice Statistics, U.S.
Dep't of Justice, Sourcebook of Criminal Justice Statistics--1993,
at 183-89 (1994) (compiling several studies over 20 years
showing an increasing fear of crime).
Mark Fritz, Cities Seek Answer to Crime in Aggressive
Police Programs, Austin Am.-Statesman,
Feb. 5, 1995, at A17 (noting that "the climate of fear
has turned many communities into glorified crime labs," as citizens
are letting police use drastic measures of search and seizure
to make their neighborhoods safer).
supra text accompanying
U.S.C. § 922 (1994).
supra note 79, at 146.
Adam Clymer, Finance Panel Agrees on Plan Subsidizing
Health for the Poor, N.Y. Times,
July 2, 1994, at 1, 7 (noting that the provision of the
health care bill that would have imposed a special tax on ammunition
was defeated in the Senate Finance Committee by a vote of 15
U.S.C. § 922(s)(1)(A)(ii)(I) (1994).
e.g., Cal. Penal Code
§§ 12051-12054 (West 1992 & Supp. 1996)
(requiring applicants for a license to carry a firearm to undergo
fingerprinting, investigation, and various filings and requiring
applicants to pay fees to cover the costs of the application
process); N.Y. Penal Law
§ 400.00 (McKinney 1989 & Supp. 1996) (requiring
applicants for a license to carry firearms to file various forms,
submit photographs, submit to a police investigation, and pay
fees to cover these costs).
Parenthood v. Casey, 505 U.S. 833, 873 (1992).
Lund, supra note 132, at
123-24 (suggesting application
of the least restrictive means analysis to gun control laws).
Jay R. Wagner, Comment, Gun Control Legislation and
the Intent of the Second Amendment: To What Extent Is There
an Individual Right to Keep and Bear Arms, 37 Vill.
L. Rev. 1407, 1451-57 (1992) (advocating the application
of strict scrutiny to federal gun control legislation).
Casey, 505 U.S. at 874-98 (applying
the "undue burden" standard to a Pennsylvania law restricting
access to abortions). Though the undue burden standard has not
been precisely defined, it would generally prohibit regulations
that have "the purpose or effect of placing a substantial obstacle
in the path of" a person seeking to exercise her right. Id.
supra section I(B)(1).
supra section I(B)(2).
supra section I(B)(3).
supra section I(B)(4).
supra note 121 and accompanying
[Copyright © 1996 Texas Law Review. Originally
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