Monday, December 7, 2015

An American Evolution: The Right to Bear Arms

A few months ago, I ran across a legal brief written in 1971 by John Levin.  At the time of its writing, Levin was an Assistant Professor at the Chicago-Kent College of Law.  In the wake of the terrorist attack in San Bernadino, I thought it be interesting to provide excerpts from Levin's brief:

"The earliest colonial statutes requiring that the colonists arm themselves were Virginia statutes of 1623 stating that ‘no man go or send abroad without a sufficient party will [sic] armed,’ and that ‘men go not to worke in the ground without their arms (and a centinell upon them)."

“During the revolutionary period the issue of arms and the bearing of arms developed along two distinct lines. One line of development related to the balance of military power between the people and their respective governments. The people feared that if the state or federal government became too powerful, that government would abridge the liberties of the people and impose its will by force. The other line of development related to the balance of military power between the governmental bodies of the union. The state governments feared that if they entrusted too much power in the hands of the central government, that government would destroy the political and military independence of the states.”

“The state constitutions framed during the War for Independence reflected the fears of a standing army. The framers felt that such an army would create an overbearing force at the disposal of the state governments. All the states included provisions regarding standing armies and militia in their bills of rights. Several had provisions similar to Virginia's:

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.”

When the draftsmen of the majority of the state bills of rights wrote of replacing the standing army with a popular militia, they believed it would remove a source of arbitrary military power from the hands of the state governments and replace it with a military less likely to oppress the people. They attempted to structure the political and military balance in the new states by making the governments less powerful and the citizens more powerful.”

“The provisions in the state constitutions granting a ‘right to bear arms’ were not intended to permit a public allowance of the right of revolution. In the first place, the phrase ‘to bear arms’ only meant serving in an organized armed force.  In the second place, the right of revolution, or at least a statement of the principle of that right, was specifically contained in other sections of most state constitutions. In the third place, the guaranty of the ‘right to bear arms’ or similar statements of preference for the militia was contained in that section of the constitutions directly concerned with controlling the military power of the state and not in the section recognizing the right of revolution.”

“The fundamental problem facing the convention was not to support and nourish a revolutionary situation, but to create a viable federal government out of the jealous and independent states. One of the major aspects of this problem was the creation of a national army. The delegates to the convention feared that if the new federal government could obtain sufficient military power, it could then impose its will on the states and on the people.”

“James Madison replied: ‘As the greatest danger is that of disunion of the States it is necessary to guard against it by sufficient powers to the Common Government and as the greatest danger to the liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.’ A compromise was reached whereby the federal government would maintain a standing army plus have the authority to regulate and call out the militia, and the states would have authority over the militia except when it was called into federal service. The results of the compromise appear in article I, section 8 of the United States Constitution…”

“When such a bill of rights was debated in the First Congress, the militia amendment was first reported out of committee of the House of Representatives reading:
A well-regulated Militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.

“Several of the representatives objected to the provision excusing those people ‘religiously scrupulous’ from bearing arms.”

“In any event the religious exemption from the militia was dropped and the amendment in its final form read:  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

“From the debates it seems clear that the intent of Congress in passing the second amendment was to prevent the federal government from destroying the state militia. Pinckney would keep a defense force uniform and at the disposal of the federal government. Martin was assured that the federal government would not emasculate the states and leave them at the mercy of federal troops. The ‘right to bear arms’ was a corporate right used to insure that a desired balance between liberty and authority within the union would be maintained.

“Attempts were made to include a personal right to have arms in the Bill of Rights. Sam Adams introduced a bill in the Massachusetts legislature that the state support an amendment holding that the ‘Constitution be never construed to authorize Congress to ... prevent the people of the United States, who are peaceable citizens from keeping their own arms.’ New Hampshire supported a provision that ‘Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion.’ Though these provisions were never adopted, they indicate that there has never been any absolute "American" philosophy on the right to bear arms. This confusion arises from America's situation of being a frontier nation created out of revolution and espousing a belief in revolution but which also desires and needs to create an orderly social and political structure.”

“While most courts have not attempted to counter the assertion of the right of revolution, an earlier Arkansas court had stated in State v. Buzzard that such a right was unnecessary under a free, republican government which could be changed at the will of the people.”

“The desire to maintain such a balance has had a long history dating from feudal times, through the English revolution to the present day. Such thinking, however, is rare in judicial opinions. Similarly rare is the unitary concept of society and government expressed by the Kansas court in City of Salina v. Blakesly.

“The provision ...that 'the people have the right to bear arms for their defense and security' refers to the people as a collective body. It was the safety and security of society that was being considered when this provision was put into our Constitution .... The provision in question applies only to the right to bear arms as a member of the State Militia, or some other military organization provided for by the law.

Such thinking indicates belief that there is no need to provide for a military balance within the political and social structure when that structure is responsive to the people.

“Most state courts have never spoken of the right to bear arms in the sophisticated terms of political balance, but rather treated the right as synonymous with the right of self-defense.”

“These debates over the issue of the right of self-defense, though of primary interest today, have little relation to the intent of the draftsmen of the Bill of Rights. The right of self-defense has had a long history; but its history was parallel to, not connected with, the right to bear arms.”

“Cases concerning the second amendment arose in the federal courts only after the Civil War. The first of such cases, U.S. v. Cruickshank, implied that there was a personal right to bear arms upon which Congress could not infringe.”

“The issue of regulating the collective right arose in United States v. Miller in which the Supreme Court held that as long as the weapon regulated did not have a direct relationship to the arms used in maintaining a well-regulated militia, they could be controlled…”

“The federal courts have interpreted the right to bear arms contained in the second amendment very narrowly. The right exists only to the extent that the arms are required for a well-regulated militia. Since Presser [v. Illinois], however, the second amendment has been interpreted as a source of federal power and not as a protection of state power. The need for the old military balance between state and national governments had disappeared, and the federal courts no longer recognized its existence.”

“Regardless of the long history of violence and assassination in the United States, the right to bear arms has remained closely and jealously guarded. This right appears to provide the individual with the means of protecting himself against other individuals and of protecting himself against his government. The maintenance of a military balance within the political structure was the genesis of this right, and the desire to continue such a balance will promote its continuation. The right to bear arms supports man in his fear of being defenseless in the face of personal danger or oppression.”

There have been a myriad of court decisions since 1971.  How have they changed the legal interpretation of the right to bear arms? If this is an issue of interest to you, I am sure you have a strong opinion.  If you fall into that category, I suggest you click through to read this entire piece. My selected excerpts may reflect my confirmation bias. 



  1. Interesting brief. If you want to get really scared, do a Google search on the second amendment and read the comments to anyone who suggests that there might be limitations on the right to own or carry arms.

  2. The subject of gun control is brought up every time a mass shooting hits the headlines and I think this is inappropriate. The issue of terrorism and mass violence is a different issue and politicians do us a disservice by confusing the two things.

    My friends who own guns "for self-defense" argue that the weapon makes them feel safe. As this briefs points out, that was not the original intent of the second amendment but it is how we're interpreting it today. So, the argument that the second amendment was not "intended" to protect self-defense doesn't sway anyone who supports gun ownership rights.

    At the same time, I doubt very many people would argue that individuals have the right to extreme weapons (such as WMD) so there must be a line somewhere. The problem isn't whether a law-abiding citizen can own a gun, it's figuring out how powerful a weapon a responsible citizen can own. Such weapons didn't exist when our founders framed the constitution.

  3. I was wondering when you would get around to this subject given recent events, and POTUS’s desire/need to grasp at any opportunity, no matter how crass, to pursue his agenda.

    I say in advance two things:

    1) Yes, I know your position with respect to the right (and need) for individuals to bear arms, and
    2) I apologize in advance for the next comment, given both our proclivities to sometimes be harsh on each other right out of the gate, when I say you sound like an armchair academic chatting with your colleagues in the safety of the faculty lounge at some liberal university. The subject would be (as you have) well studied, debated, considered, and opinions rendered with respect to what is best for the country. But at the end of the discussion, it wouldn’t make American citizens any safer. Likely the opposite.

    Ok, that said, John, I don’t even care anymore what the framers intended. The right for individuals to bear arms (and even the debate on which arms) has been, are, and will continue to be debated and adjudicated more due to political agendas than by substantive public safety concerns. Because there is no public safety issue. Why? Here’s a cut and paste response I recently sent to a mutual friend on the same subject, although it was in response to the narrower issue of should the public have “assault” (misnomer) rifles:

    “The founders were guided by the events of the time and great wisdom and foresight with respect to understanding the need for the citizenry, in order to protect their rights in a free society, to have the right (whether or not it’s exercised) to protect themselves.

    That said, I don’t even get into the 2nd amendment arguments because 1) smarter more knowledgeable people than us have ruled citizens have the right to bear arms, and 2) (more importantly) the Constitutional argument is moot since many if not all gun controllers would reverse Heller or amend the 2nd amendment to take guns away from individuals. Many would prefer confiscation. 3) It’s not a constitutional law argument it’s a matter of individual defense and protections from people that would otherwise do innocent people (most people) harm. I prefer a gun as I’m too old to use my fists (in many cases), particularly when the bad guys have guns.

  4. So then the question becomes not should we have the right to defend ourselves but how best to do so? Type of weapon, capacity, singe shot, semi-auto, fully auto, variable, knife, hammer, rolling pin, etc. Seems pretty clear to me that I want the most effective means available to protect myself from individuals or groups of individuals that seek to do harm to me, my family, friends, or others (mall, party, movie theater, school, etc.). ISL only deepens the potential threat.

    And when one considers that there are in excess of 300 million guns in the hands of over 100 million (probably much more) law abiding Americans, and the amount of mass shootings (4 or more) accounts for .0025% of the population, while hundreds (probably thousands) of people, that the news never talks about, deter, foil, or prevent violent crimes against innocent people using their gun, I don’t see the problem. In fact, I see the enormous benefit to a free society and the safety of its citizenry.

    Finally (but not solely), and probably one of the most frustrating part of the anti-gun agenda, is this preposterous notion that by limiting the types of weapons, capacities, zones in which to possess, etc., those very people that would seek to do harm to others would comply with those restrictions/laws and wouldn’t purchase/steal/smuggle those weapons from the same criminal sources whose circles they run in. A bit of an illogical conclusion wouldn’t you say? They’re criminals. They don’t obey the law. The 99.75% of the population who own 300 million guns do. So leave us alone. You may need us some day.”

    Ok, likely not anything from me you haven’t heard/read before. The only addition is that if you believe that international terrorism is a real threat, and it’s hard to argue it isn’t at least as an additional component of crimes against society, than consider this: is not the citizenry a militia of sorts to protect each other from an organized force that wished to do us harm? The police? It’s an over-used cliché used by 2nd amendment (whoops!) supporters but when seconds count the police are minutes away.

    Thanks for reading.

  5. I think that future history will look back on this period as the “re-arming of the US citizenry” bringing about a transformation of what has become our complacency for the need to self-protect ourselves. Unfortunately, bad guys look for weakness and they have found it in Western social communities. We do not live in a world that allows us to be too complacent when it comes to protecting ourselves and our ideals. I also think that the true counter-terror action will come, not from the use of firearms to great extent, but due to the deterrent of people knowing target populations of people have immediate access if the guns are needed in any particular circumstance. This will not cure the potential for planting large explosions and car bombs, etc., but I hope the government will continue to trim the potential by identifying large scale assailants before they act, and the knowledge of an armed citizenry will deter individuals acting out on their own.

    The world has gone through various times when the Muslims and the remainder of the world have had conflicts; the raw reading of the Muslim religious beliefs have not changed since their origin many years ago. It allows justification for highly conservative Muslims to kill at will and encourages them with spiritual rewards for doing so. No way to compromise or yield to hard liners in their faith. However, I do not believe that it is the teaching and following of the vast majority of Muslims who are willing to live comfortably among other faiths; they have somehow concluded that the “have to kill all non-believers” portion of their belief systems is not an imperative to their faith.

  6. The Supreme Court's Heller decision pretty much put the nail on the coffin to the specious argument that the Second Amendment is a collective right that applies only to state militias. See