Prof. Eugene Volokh, UCLA Law School *
I.
Text of the Amendment and
Related Contemporaneous Provisions
II.
Calls for the Right to Keep
and Bear Arms from State Ratification Conventions
III.
"The Right of the People" in
Other Bill of Rights Provisions
IV.
Some Other Contemporaneous
Constitutional Provisions With a Similar Grammatical
Structure
V.
18th- and 19th-Century
Commentary
A.
William Blackstone,
Commentaries on the Laws of England (1765)
B.
St. George Tucker,
Blackstone's Commentaries (1803)
C.
Joseph Story, Familiar
Exposition of the Constitution of the United States
(1840)
D.
Thomas Cooley, Principles of
Constitutional Law (1898)
VI.
Selected Supreme Court
Cases
A.
United States v. Miller, 307
U.S. 174 (1939)
B.
Lewis v. United States, 445
U.S. 55, 65 (1980)
C.
Casey v. Planned Parenthood,
505 U.S. 833, 848 (1992) (dictum)
D.
List of Cases Mentioning the
Second Amendment
VII.
Relevant Statutes
A.
Militia Act of
1792
B.
The currently effective
Militia Act
Dear Mr. Chairman and Members of the Committee:
Eight years ago, I got into an argument with a nonlawyer acquaintance about the Second Amendment. The Amendment, this person fervently announced, clearly protects an individual right. Not so, I argued to him, thinking him to be something of a blowhard and even a bit of a kook.
Three years ago, I discovered,
to my surprise and mild chagrin, that this supposed kook was
entirely right. In preparing to teach a law school seminar
on firearms regulation (one of the only about half a dozen such
classes that I know of at U.S. law schools), I found that the
historical evidence -- much of which I set forth verbatim in the
Appendix -- overwhelmingly points to one and only one
conclusion: The Second Amendment does indeed secure an
individual right to keep and bear arms.
1.
The Text of the Amendment
Refers to an Individual Right
The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. 1 These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right.
What about the seemingly odd two-clause construction, which some commentators have called "unusual," "special," and "nearly unique"? 2 It turns out that there's nothing odd about it at all. During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution's Free Press Clause, for instance, reads
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject, being responsible for the abuse of that liberty . . . . 3Just as with the Second Amendment, the second clause secures a right, while the first justifies it to the public.
And the two clauses of the
Amendment are entirely consistent. The second clause
guarantees a "right of the people," which is the right of each
individual. The first clause explains that this right helps
further a "well-regulated militia," a legal term of art that means
"the body of the people capable of bearing arms" (here I quote from
the New York Ratifying Convention's proposal that eventually became
the Second Amendment 4) -- the
entire armed citizenry, not some small National Guard-type unit.
The current Militia Act, enacted in 1956 and derived from the
original
1792 Militia Act, defines the "militia" as including all
able-bodied male citizens from 17 to 45; 5 given the Court's sex equality jurisprudence, I
feel comfortable saying that every able-bodied citizen from age 17
to 45, male or female, is a member of the militia. This is
quite consistent with the second clause's securing an individual
right to every person.
2.
Contemporaneous Constitutions
and Commentaries Unanimously Treat the Right as an Individual
Right
Contemporaneous evidence from the late 1700s and 1800s unanimously supports the individual rights reading of the text. It's widely agreed that the Second Amendment right to keep and bear arms was an expanded version of a similar right in the 1688 English Bill of Rights. England, of course, didn't have states, so the English right couldn't have been a states' right; Sir William Blackstone, whose 1765 Commentaries were tremendously influential in Revolutionary Era America, described the right as a "right of the subject," an obviously individual rights characterization. 6
Many early state Bills of
Rights also protected the right to keep and bear arms; since these
rights were protections against state governments,
they surely must have protected individuals, not the states
themselves. And many of the constitutions made this quite
explicit. The 1790 Pennsylvania and the 1792 Kentucky
Constitutions described the right as "the right of the citizens";
the 1796 Tennessee Constitution spoke of "the right of the
freemen"; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and
1819 Alabama Constitution specifically referred to the right of
"every citizen." The 1776 Pennsylvania,
1777 Vermont, 1802 Ohio, 1816 Indiana, and 1820 Missouri
Constitutions spoke of "the people['s] right to bear arms for the
defence of themselves," referring to the people individually
("themselves") rather than collectively ("itself"). 7 Throughout the 1800s, these
unambiguously individual rights were seen as directly analogous to
the Second Amendment. 8
The same goes for all the
notable constitutional commentators of the 1800s. St. George
Tucker (1803) treated the Second Amendment right as equivalent to
Blackstone's "right of the subject"; 9 William Rawle (1829) did likewise. 10 Justice Joseph Story
(1833 and 1840) called it a "right of the citizens." 11 Thomas Cooley (1880 and
1898) took exactly the same individual right view; 12 so did the 1866 Freedmen's
Bureau Act, which specifically secured to "all the citizens" "the
constitutional right to bear arms" as part of their "personal
liberty."
13 A recent exhaustive
study reveals that there was exactly one statement in
the 1800s cases or commentaries supporting the collective rights
view, a concurring opinion in an 1842 Arkansas state court case. 14
The U.S. Supreme Court has
said little about the Second Amendment, but it has certainly not
said that the Amendment secures only a collective right.
Throughout the Court's
history, the Justices have mentioned the Second Amendment, usually
in passing, in 27 opinions. In 22 of these 27, the Justices
quoted or paraphrased only "the right of the people to keep and
bear arms" language, without even mentioning the Militia Clause. 15
One of the remaining five
cases -- and the only extended 20th-century discussion of the right
-- is United States v. Miller (1939), which held that
the right extended only to weapons that were rationally related to
the preservation of the militia. 16 But the Court emphatically did
not hold that the right belonged only to the state or
the National Guard. Rather, it reaffirmed that the "militia"
referred to the entire armed citizenry, and considered on the
merits a lawsuit that was brought by an individual
(Miller), not by a state.
The only Supreme Court case
that leans in the collective rights direction is Lewis v.
United States (1980), which summarily rejected an ex-felon's
claim of a right to possess a firearm, in passing citing some lower
court cases that took a collective rights view. 17 But Lewis
could equally well be explained as concluding only that
ex-felons don't have a right to keep and bear arms
(something that's also been held in the many states whose
constitutions
unambiguously guarantee an individual right to keep and bear
arms). In any event, if one relies on passing mentions,
Casey v. Planned Parenthood (1992) (quoting Justice
Harlan) in passing described liberty as including "[freedom from]
the taking of property; the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on" -- a description that treats the
right to keep and bear arms as an individual right on par with the
other individual rights. 18
Despite all the above
evidence, the federal courts of appeal have unanimously subscribed
to the states' right approach, though there are a few recent hints
to the contrary in some opinions. 19 If the historical or textual evidence were
in equipoise, and if the cases dealt carefully with the evidence
and explained why the pro-states'-right evidence was more
persuasive than the pro-individual-right evidence, then perhaps we
might defer to these courts' views. But when the lower
courts' decisions are contrary to the unanimous weight of the
evidence, and do not really confront this evidence but rely almost
entirely
on bald assertions or on citations to other lower court decisions,
it seems to me that we must respectfully say that the lower courts
are mistaken.
While the evidence that the
right is an individual right is extremely strong, the precise scope
of the right is a matter of considerable debate. This of
course is true of all individual rights: Everyone agrees
that the First Amendment, the Fourth Amendment, and other
provisions secure individual rights, but reasonable minds differ on
exactly what speech the First Amendment protects and exactly what
searches the Fourth Amendment prohibits.
Thus, recognizing that the
Second Amendment secures an individual right tells us little about
most moderate gun controls, for instance background checks, waiting
periods, or modest restrictions on the kinds of brands that may be
marketed. I don't know how these laws should be treated; I
suspect that many would be upheld, like many modest speech
restrictions are upheld despite the existence of the First
Amendment.
But our concern about these
problems can't blind us to the clear verdict of the constitutional
text and the constitutional history: The Framers of the Bill
of Rights (and of the Fourteenth Amendment 20) saw the right to keep and bear arms as an
individual right, entitled to the same sort of dignity and
protection as the freedom of speech, the privacy of the home, the
right to trial by jury, and our other constitutionally secured
protections.
As the Court said when
defending another often unpopular right -- the privilege against
self-incrimination --
(I include here all the state
rights to keep and bear arms enacted in 1820 or before, plus the
provision from the first [1842] Constitution of Rhode Island, the
last of the original states to set up a constitution.)
Second
Amendment: 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.
English Bill of
Rights: That the subjects which are protestants may
have arms for their defence suitable to their conditions and as
allowed by law (1689). 22
Alabama:
That every citizen has a right to bear arms in defence of himself
and the state (1817). 23
Connecticut: Every citizen has a right to bear
arms in defense of himself and the state (1818). 24
Indiana: That the
people have a right to bear arms for the defense of themselves and
the State, and that the military shall be kept in strict
subordination to the civil power (1816). 25
Kentucky:
[T]he right of the citizens to bear arms in defense of themselves
and the State shall not be questioned (1792). 26
Maine: Every
citizen has a right to keep and bear arms for the common defence;
and this right shall never be questioned (1819). 27
Massachusetts: The people have a right to keep
and to bear arms for the common defence (1780). 28
Mississippi:
Every citizen has a right to bear arms, in defence of himself and
the State (1817). 29
Missouri: That
the people have the right peaceably to assemble for their common
good, and to apply to those vested with the powers of government
for redress of grievances by petition or remonstrance; and that
their right to bear arms in defence of themselves and of the State
cannot be questioned (1820). 30
North
Carolina: [T]he people have a right to bear arms, for
the defence of the State; and, as standing armies, in time of
peace, are dangerous to liberty, they ought not to be kept up; and
that the military should be kept under strict subordination to, and
governed by, the civil power (1776). 31
Ohio: That
the people have a right to bear arms for the defence of themselves
and the State; and as standing armies, in time of peace, are
dangerous to liberty, they shall not be kept up, and that the
military shall be kept under strict subordination to the civil
power (1802). 32
Pennsylvania: That the people have a right to
bear arms for the defence of themselves and the state; and as
standing armies in the time of peace are dangerous to liberty, they
ought not to be kept up; And that the military should be kept under
strict subordination, to, and governed by, the civil power (1776).
33
The right of the citizens to
bear arms in defence of themselves and the State shall not be
questioned (1790). 34
Rhode
Island: The right of the people to keep and bear arms
shall not be infringed (1842). 35
Tennessee:
[T]he freemen of this State have a right to keep and bear arms for
their common defence (1796). 36
Vermont:
[T]he people have a right to bear arms for the defence of
themselves and the State -- and as standing armies in time of peace
are dangerous to liberty, they ought not to be kept up; and that
the military should be kept under strict subordination to and
governed by the civil power (1777). 37
Virginia:
That a well regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defense of a free
state; that standing armies, in time of peace, should be avoided as
dangerous to liberty; and that in all cases the military should be
under strict subordination to, and governed by, the civil power
(1776). 38 [The Virginia
Constitution didn't mention a right to keep and bear arms until
1971.]
Five of the states that
ratified the Constitution also sent demands for a Bill of Rights to
Congress. All these demands included a right to keep and
bear arms. Here, in relevant part, is their text:
New
Hampshire: Twelfth[:] Congress shall never disarm
any Citizen unless such as are or have been in Actual Rebellion.
Virginia:
. . . Seventeenth, That the people have a right to keep and
bear arms; that a well regulated Militia composed of the body of
the people trained to arms is the proper, natural and safe defence
of a free State. That standing armies in time of peace are
dangerous to liberty, and therefore ought to be avoided, as far as
the circumstances and protection of the Community will admit; and
that in all cases the military should be under strict subordination
to and governed by the Civil power.
New York:
. . . That the People have a right to keep and bear Arms;
that a well regulated Militia, including the body of the People
capable of bearing Arms, is the proper, natural and safe defence of
a free State; That the Militia should not be subject to Martial Law
except in time of War, Rebellion or Insurrection. That
Standing Armies in time of Peace are dangerous to Liberty, and
ought not to be kept up, excess in Cases of necessity; and that at
all times, the Military should be under strict Subordination to the
civil Power.
North
Carolina: Almost identical to Virginia demand, but
with "the body of the people, trained to arms" instead of "the body
of the people trained to arms."
Rhode
Island: Almost identical to Virginia demand, but with
"the body of the people capable of bearing arms" instead of "the
body of the people trained to arms," and with a "militia shall not
be subject to martial law" proviso as in New York.
First
Amendment: Congress shall make no law . . . abridging
. . . the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Fourth
Amendment: The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .
Ninth
Amendment: The enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others
retained by the people.
Tenth
Amendment: [Speaking of "the powers . . . of the
people" rather than "the right . . . of the people"] The powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
Rhode Island Free Press
Clause: The liberty of the press being essential to
the security of freedom in a state, any person may publish
sentiments on any subject, being responsible for the abuse of that
liberty . . . . 41
Massachusetts Free Press
Clause: The liberty of the press is essential to the
security of freedom in a state it ought not, therefore, to be
restricted in this commonwealth. 42
Massachusetts Speech and
Debate Clause: The freedom of deliberation, speech
and debate, in either house of the legislature, is so essential to
the rights of the people, that it cannot be the foundation of any
accusation of prosecution, action or complaint, in any other court
or place whatsoever. 43
New Hampshire Venue
Clause: In criminal prosecutions, the trial of the
facts in the vicinity where they happen is so essential to the
security of the life, liberty, and estate of the citizen, that no
crime or offence ought to be tried in any other county than that in
which it is committed . . . . 44
In the three preceding
articles we have taken a short view of the principal absolute
rights [personal security, personal liberty, private property]
which appertain to every Englishman. But in vain would these
rights be declared, ascertained, and protected by the dead letter
of the laws, if the constitution had provided no other method to
secure their actual enjoyment. It has therefore established
certain other auxiliary subordinate rights of the subject, which
serve principally as outworks or barriers to protect and maintain
inviolate the three great and primary
rights, of personal security, personal liberty, and private
property.
1. The constitution,
powers, and privileges of parliament . . . .
2. The limitation of
the king's prerogative . . . .
3. . . . [A]pplying to
the courts of justice for redress of injuries.
4. . . . [T]he right of
petitioning the king, or either house of parliament, for the
redress of grievances.
5. The fifth and last
auxiliary right of the subject, that I shall at present mention, is
that of having arms for their defence, suitable to their condition
and degree, and such as are allowed by law. Which is also
declared by the same statute . . . and is indeed a public
allowance, under due restrictions, of the natural right of
resistance and self-preservation, when the sanctions of society and
laws are found insufficient to restrain the violence of
oppression.
. . . [T]o vindicate
[the three primary rights], when actually violated or attacked, the
subjects of England are entitled, in the first place, to the
regular administration and free course of justice in the courts of
law; next, to the right of petitioning the king and parliament for
redress of grievances; and, lastly, to the right of having and
using arms for self-preservation and defence.
[Annotation to Blackstone's
discussion of the right to have arms as the fifth and last
auxiliary right:]
The fifth and last auxiliary
right of the subject, that I shall at present mention, is that of
having arms for their defence [fn40] suitable to their condition
and degree, and such as are allowed by law. [fn41]
[fn40] The right of the
people to keep and bear arms shall not be infringed, and this
without any qualification as to their condition or degree, as is
the case in the British government.
[fn41] Whoever examines the
forest, and game laws in the British code, will readily perceive
that the right of keeping arms is effectually taken away from the
people of England. The commentator himself informs us, "that
the prevention of popular insurrections and resistence
[sic] to government by disarming the bulk of the
people, is a reason oftener meant than avowed by the makers of the
forest and game laws."
[A separate discussion in an
Appendix, specifically about the Second Amendment.]
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.
This may be considered as the
true palladium of liberty . . . . The right of self defence
is the first law of nature: in most governments it has been the
study of rulers to confine this right within the narrowest limits
possible. Wherever standing armies are kept up, and the
right of the people to keep and bear arms, is under any colour or
pretext whatsoever, prohibited, liberty, if not already
annihilated, is on the brink of destruction.
In England, the people have
been disarmed, generally, under the specious pretext of preserving
the game: a never failing lure to bring over the landed aristocracy
to support any measure, under that mask, though calculated for very
different purposes. True it is, their bill of rights seems
at first view to counteract this policy: but the right of bearing
arms is confined to protestants, and the words suitable to their
condition and degree, have been interpreted to authorise the
prohibition of keeping a gun or other engine for the destruction of
game, to any farmer, or inferior tradesman, or other person not
qualified to kill game. So that not one man in
five hundred can keep a gun in his house without being subject to
a penalty. [Editorial note: I understand that this
last sentence is considered by some historians to be an
exaggeration. 47]
The next amendment is, "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." One of the ordinary modes, by which tyrants
accomplish their purposes without resistance, is, by disarming the
people, and making it an offence to keep arms, and by substituting
a regular army in the stead of a resort to the militia. The
friends of a free government cannot be too watchful, to overcome
the dangerous tendency of the public mind to sacrifice, for the
sake of mere private convenience, this powerful check upon the
designs of ambitious men.
The importance of this article
will scarcely be doubted by any persons, who have duly reflected
upon the subject. The militia is the natural defence of a
free country against sudden foreign invasions, domestic
insurrections, and domestic usurpations of power by rulers.
It is against sound policy for a free people to keep up large
military establishments and standing armies in time of peace, both
from the enormous expenses, with which they are attended, and the
facile means, which they afford to ambitious and unprincipled
rulers, to subvert the government, or trample upon the rights
of the people. The right of the citizens to keep and bear
arms has justly been considered, as the palladium of the liberties
of a republic; since it offers a strong moral check against the
usurpation and arbitrary power of rulers; and will generally, even
if these are successful in the first instance, enable the people to
resist and triumph over them. And yet, though this truth
would seem so clear, and the importance of a well regulated militia
would seem so undeniable, it cannot be disguised, that among the
American people there is a growing indifference to any system of
militia
discipline, and a strong disposition, from a sense of its burthens,
to be rid of all regulations. How it is practicable to keep
the people duly armed without some organization, it is difficult to
see. There is certainly no small danger, that indifference
may lead to disgust, and disgust to contempt; and thus gradually
undermine all the protection intended by this clause of our
National Bill of Rights.
Section IV. -- The Right to
Keep and Bear Arms.
The Constitution.
-- By the Second Amendment to the Constitution it is declared 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."
The amendment, like most other
provisions in the Constitution, has a history. It was
adopted with some modification and enlargement from the English
Bill of Rights of 1688, where it stood as a protest against
arbitrary action of the overturned dynasty in disarming the people,
and as a pledge of the new rulers that this tyrannical action
should cease. The right declared was meant to be a strong
moral check against the usurpation and arbitrary power of rulers,
and as a necessary and efficient means of regaining rights when
temporarily overturned by usurpation.
The Right is
General. -- It may be supposed from the phraseology of this
provision that the right to keep and bear arms was only guaranteed
to the militia; but this would be an interpretation not warranted
by the intent. The militia, as has been elsewhere explained,
consists of those persons who, under the law, are liable to the
performance of military duty, and are officered and enrolled for
service when called upon. But the law may make provision for
the enrolment of all who are fit to perform military duty, or of a
small number only, or it
may wholly omit to make any provision at all; and if the right were
limited to those enrolled, the purpose of this guaranty might be
defeated altogether by the action or neglect to act of the
government it was meant to hold in check. The meaning of the
provision undoubtedly is, that the people, from whom the militia
must be taken, shall have the right to keep and bear arms, and they
need no permission or regulation of law for the purpose. But
this enables the government to have a well regulated militia; for
to bear arms implies something more than the mere keeping; it
implies the learning to handle
and use them in a way that makes those who keep them ready for
their efficient use; in other words, it implies the right to meet
for voluntary discipline in arms, observing in doing so the laws of
public order.
Standing Army. --
A further purpose of this amendment is, to preclude any necessity
or reasonable excuse for keeping up a standing army. A
standing army is condemned by the traditions and sentiments of the
people, as being as dangerous to the liberties of the people as the
general preparation of the people for the defence of their
institutions with arms is preservative of them.
What Arms may be
kept. -- The arms intended by the Constitution are such as
are suitable for the general defence of the community against
invasion or oppression, and the secret carrying of those suited
merely to deadly individual encounters may be prohibited.
[This is the only extensive
modern discussion of the Amendment.]
An indictment in the District
Court Western District Arkansas, charged that Jack Miller and Frank
Layton "did unlawfully, knowingly, wilfully, and feloniously
transport in interstate commerce from the town of Claremore in the
State of Oklahoma to the town of Siloam Springs in the State of
Arkansas a certain firearm, to-wit, a double barrel 12-gauge
Stevens shotgun having a barrel less than 18 inches in length
[contrary to the National Firearms Act] . . . ."
A duly interposed demurrer
alleged: The National Firearms Act is not a revenue measure
but an attempt to usurp police power reserved to the States, and is
therefore unconstitutional. Also, it offends the inhibition
of the Second Amendment to the Constitution -- "A well regulated
Militia, being necessary to the security of a free State, the right
of people to keep and bear Arms, shall not be infringed."
The District Court held that section eleven of the Act violates the
Second Amendment. It accordingly sustained the demurrer and
quashed the indictment.
. . .
In the absence of any evidence
tending to show that possession or use of a "shotgun having a
barrel of less than eighteen inches in length" at this time has
some reasonable relationship to the preservation or efficiency of
a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument.
Certainly it is not within judicial notice that this weapon is any
part of the ordinary military equipment or that its use could
contribute to the common defense. Aymette v. State, 2
Humphreys (Tenn.) 154, 158.
The Constitution as originally
adopted granted to the Congress power -- "To provide for calling
forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions; To provide for organizing,
arming, and disciplining, the Militia, and for governing such Part
of them as may be employed in the Service of the United States,
reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to
the discipline prescribed by Congress." With obvious
purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the
Second Amendment were made. It must be interpreted and
applied with that end in view.
The Militia which the States
were expected to maintain and train is set in contrast with Troops
which they were forbidden to keep without the consent of
Congress. The sentiment of the time strongly disfavored
standing armies; the common view was that adequate defense of
country and laws could be secured through the Militia -- civilians
primarily, soldiers on occasion.
The signification attributed
to the term Militia appears from the debates in the Convention, the
history and legislation of Colonies and States, and the writings of
approved commentators. These show plainly enough that the
Militia comprised all males physically capable of acting in concert
for the common defense. "A body of citizens enrolled for
military discipline." And further, that ordinarily when
called for service these men were expected to appear bearing arms
supplied
by themselves and of the kind in common use at the time.
[Citing further sources, e.g., the Virginia Act of October 1785
providing for a Militia of "all free male persons between the ages
of eighteen and fifty years," with certain exceptions.]
Most if not all of the States
have adopted provisions touching the right to keep and bear
arms. Differences in the language employed in these have
naturally led to somewhat variant conclusions concerning the scope
of the right guaranteed. But none of them seem to afford any
material support for the challenged ruling of the court below.
[Lewis was convicted of being
a felon in possession of a firearm, and challenged the conviction
on various statutory grounds, on the ground that his prior felony
conviction was uncounseled and therefore shouldn't be considered,
and on constitutional grounds. The Court held:]
The firearm regulatory scheme
at issue here is consonant with the concept of equal protection
embodied in the Due Process Clause of the Fifth Amendment if there
is "some rational basis' for the statutory distinctions made . .
. or . . . they have some relevance to the purpose for
which the classification is made." [fn1]
Section 1202(a)(1) clearly
meets that test. . . .
[fn1] These legislative
restrictions on the use of firearms are neither based upon
constitutionally suspect criteria, nor do they trench upon any
constitutionally protected liberties. See United States v.
Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939)
(the Second Amendment guarantees no right to keep and bear a
firearm that does not have "some reasonable relationship to the
preservation or efficiency of a well regulated militia"); United
States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504
F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497
F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8),
cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972)
(the latter three cases holding, respectively,
that § 1202(a)(1), § 922(g), and § 922(a)(6) do not
violate the Second Amendment).
Neither the Bill of Rights nor
the specific practices of States at the time of the adoption of the
Fourteenth Amendment marks the outer limits of the substantive
sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amdt. 9. As the second Justice Harlan
recognized: "[T]he full scope of the liberty guaranteed by
the Due P
3.
The U.S. Supreme Court Cases
Do Not Treat the Right as a Collective Right
4.
The Precise Scope of the Right
Is a Matter of Considerable Debate
If it be thought that [a right] is outmoded in the conditions of
this modern age, then the thing to do is to take it out of the
Constitution [by constitutional amendment], not to whittle it down
by the subtle encroachments of judicial opinion. 21
Constitutional rights may be respected, repealed, or modified; but
they must never be ignored.
Appendix: Original Sources Relevant to the Second
Amendment
I.
Text of the Amendment and
Related Contemporaneous Provisions
II.
Calls for the Right to Keep
and Bear Arms from State Ratification Conventions
39
III.
"The Right of the People" in
Other Bill of Rights Provisions
IV.
Some Other Contemporaneous
Constitutional Provisions With a Similar Grammatical Structure
40
V.
18th- and 19th-Century
Commentary
A.
William Blackstone,
Commentaries on the Laws of England (1765)
45
B.
St. George Tucker,
Blackstone's Commentaries (1803)
46
C.
Joseph Story, Familiar
Exposition of the Constitution of the United States
(1840)
48
D.
Thomas Cooley, Principles of
Constitutional Law (1898)
49
VI.
Selected Supreme Court
Cases
A.
United States v. Miller, 307
U.S. 174 (1939)
B.
Lewis v. United States, 445
U.S. 55, 65 (1980)
C.
Casey v. Planned Parenthood,
505 U.S. 833, 848 (1992) (dictum)
for its contents. This is a safe-cache copy of the original web site.