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[The printed version of this article appears in the 1998 volume of the BYU Law Review, beginning at page 1359.] The Second Amendment in the Nineteenth Century David B. Kopel(*)
II. The Early Giants: Tucker, Rawle, and Story 1370 A. St. George Tucker: The American Blackstone 1370
B. Houston v. Moore 1379 C. William Rawle 1384 D. Joseph Story 1388
E. Other Pre-1850 Sources 1397
III. State Constitutions and Case Law 1409 A. State Constitutions 1409 B. State Case Law 1415
IV. Antebellum Years and the Civil War 1433 A. Dred Scott 1433 B. The Human Rights Advocates 1435
C. Bloody Kansas 1441 D. The Civil War 1444
V. Reconstruction and Labor Unrest 1447 A. Congress, Civil Rights, and the Fourteenth Amendment 1447
B. Cruikshank 1454 C. Presser 1459
VI. Commentary from the Late 19th Century: Cooley and Others 1461 A. Thomas Cooley 1461
B. The Lesser Commentators 1468
C. Law Review Articles 1503 D. Summary of the Late Nineteenth Century Commentators 1505
VII. Fin-de-Siècle and Beyond 1506 A. The Supreme Court 1506
B. The Collective Right Establishes a Footing: Salina v. Blaksley 1510 C. Late Twentieth Century Commentators 1512
D. Firearms Policy for the Twenty-first Century 1530
VIII. Conclusion 1544 I. IntroductionDespite the animosity that sometimes divides advocates and opponents of gun control, they share one important characteristic: almost unanimously, they are constitutional originalists. Persons who believe that the Second Amendment guarantees a right of individual Americans to own and carry guns claim that the original intent of the Second Amendment was for an individual right. Conversely, persons who believe that the Second Amendment only guarantees the right of state governments to have National Guard (militia) units argue that the original intent supports their own position. Both sides of the debate cite material from the period when the Constitution and the Bill of Rights were ratified and debated. Both sides also cite materials from English legal history. But surprisingly, neither side has paid significant attention to the interpretive community which first applied the Second Amendment: the United States in the nineteenth century. During that century, the Second Amendment's right to keep and bear arms was discussed in many legal treatises, in Congressional debates, in six Supreme Court cases, in numerous state court cases, and in other legal materials. Yet, except for two of the Supreme Court cases, the history of the Second Amendment in the nineteenth century has been only lightly touched by legal scholarship. In modern legal scholarship, the "Standard Model" of the Second Amendment maintains that individual Americans have a right to own guns.(1) Standard Modelers differ among themselves over the types of guns which may be kept, the breadth of purposes for which the right to keep a gun is protected, and the permissible restrictions on the "bearing" of arms. Competing with the Standard Model in the late twentieth century are what this article terms the "anti-individual" theories. The name is appropriate because these theories are linked by their common attempt to show that an individual American citizen has no right to own a gun. The leading anti-individual theorist is Handgun Control's attorney Dennis Henigan, who argues that the Second Amendment protects the state governments' right to be free from federal interference with their militias.(2) According to this view, the Second Amendment limits the Congressional militia powers created by Article I of the Constitution, although Henigan and other states' rights supporters have not specified what those limitations are.(3) But if states' rights theorists are unclear about what the Second Amendment does, they are emphatic about what it does not do: "since privately-owned weapons are no longer used to arm citizen militias, as they were in colonial times, the regulation of such arms should face no Second Amendment barrier."(4) Another major anti-individual theory might be called the "nihilist Second Amendment." Offered by Garry Wills, this theory argues that the Second Amendment "had no real meaning."(5) According to Wills, only "wacky scholars" and their dupes believe that the Second Amendment affirms a right of individuals to own firearms for protection against tyranny.(6) Evidently, James Madison played a clever trick on the entire United States and wrote an Amendment which amounts to nothing at all. In the period between Madison and Wills, however, no one else seems to have discovered this shrewd ploy.(7) The term "collective rights" is sometimes used in connection with these anti-individual interpretations of the Second Amendment to indicate a right that belongs to the people collectively (like "collective property" under a Communist government), rather than to any individual, and therefore belongs to the government. Some "collective rights" proponents adhere to a states' rights version Second Amendment, while others propound the nihilist approach. David Williams offers a third variant on the "anti-individual" approach in a series of innovative articles. First, he acknowledges that the Second Amendment was intended to preserve the ability of all "the people" to have guns and to know how to use them to maintain order and resist tyranny.(8) But, continues Williams, the Second Amendment is operative only as long as the American people are like "the people" contemplated in the republican theory of the Second Amendment: virtuous, unified, homogenous, imbued with a shared vision of the common good, and trained by their state governments in the use of firearms. Since the American people no longer fit the description of "the people" implicit in the Second Amendment, the argument goes, the Second Amendment is obsolete and of no legal effect. Because Williams's theory is an argument about changed circumstances in the twentieth century, analysis of nineteenth century sources cannot resolve all the issues he raises. But the nineteenth century does provide a good test case for Williams's theory of the Second Amendment. During the period before and after the Civil War, Americans were more disunited, more distrustful of each other, and more thoroughly polarized in their competing visions of the common good than at any other time in American history. It is useful to examine what became of the Second Amendment during these decades when the people of the United States fell far away from Williams's ideal. The various factions in the modern Second Amendment debate share another trait: they insist that their own interpretation has always been the common understanding of the Second Amendment. The contrary viewpoint, each insists, is a modern fiction, invented by the other faction, and having no support in American legal history. For example, the late Warren Burger, after retiring from the Supreme Court, participated in an advertising campaign for Handgun Control. The former Justice informed Americans that the notion of the Second Amendment as an individual right is a "fraud" perpetrated by the National Rifle Association.(9) The late Erwin Griswold, former Solicitor General of the United States, former Dean of Harvard Law School, and member of the Board of Handgun Control, wrote "that the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American constitutional law."(10) Similarly, the Coalition to Stop Gun Violence (the nation's second largest antigun group, next to Handgun Control) informs us that the notion of the Second Amendment as a barrier to gun prohibition is a "myth."(11) The Coalition's educational arm recommends a recent law review article which, instead of the word "myth," uses words such as "deception," "constitutional false consciousness," "fake," "intentional deception," "fictional," "bogus," and "constitutional charade." The article further accuses law professors holding contrary views of deliberate fraud.(12) If Chief Justice Burger and the rest are right, then we should expect that legal materials of the nineteenth century would clearly support their claim. In the period before the founding of the National Rifle Association in 1871, we should not expect to find assertions that the Second Amendment is an individual right. This article lets the nineteenth century legal community speak for itself by dealing with the treatises and cases--what Duncan Kennedy calls "the mandarin materials"(13)--of the nineteenth century, as well as Congressional and political debates. Newspaper articles, novels, and other mass entertainment materials are not discussed. There is a great deal to learn from what the nineteenth century had to say about the Second Amendment. Most importantly, we can resolve whether the Second Amendment has historically been considered to protect an individual right. Additionally, an examination of the Second Amendment in the nineteenth century provides useful guidance about what types of gun control are constitutionally permissible. Part II of this article analyzes the Second Amendment scholarship of the three great constitutional treatises of early nineteenth century--St. George Tucker's American Blackstone, William Rawle's A View of the Constitution of the United States of America, and Joseph Story's Commentaries on the Constitution of the United States--as well as some lesser commentators from the 1830s, 1840s, and 1850s. Part II also includes a study of Justice Story's dicta about the Second Amendment in the 1820 case Houston v. Moore. Part III addresses nineteenth century state constitutions and state case law regarding the right to arms. These constitutional texts and their judicial interpretation offer valuable insights into the meaning of the Second Amendment. The Civil War is the subject of Part IV, which discusses Dred Scott, the writings of anti-slavery human rights activists, and the confiscations of arms before and during the War. Part V deals with the aftermath of the Civil War, including Congressional debates about the infringements by unreconstructed Southern states of the freedmen's right to arms; the Fourteenth Amendment; and the Supreme Court's Cruikshank decision. Part V concludes with a discussion of the growth in labor unrest, restrictive gun laws aimed at labor agitators, and the Supreme Court's Presser decision. Scholarly commentators of the later nineteenth century are the subject of Part VI. Thomas Cooley is the giant of this period, but there were also more than a dozen other constitutional treatises from the period, as well as the first law review articles on the right to arms. Part VII brings the article to the fin-de-siècle, by looking at two Supreme Court cases mentioning the Second Amendment in dicta; it also peeks ahead into the early twentieth century at the most important Second Amendment "states' right" ruling--t he Kansas case of Salina v. Blaksley. Part VII also examines the implications that the nineteenth century records have for modern firearms policy, and for the scholarship of David Williams and Carl Bogus. The Conclusion discusses which modes of the Second
Amendment analysis are plausible and which modes are implausible in light of the nineteenth
century's Second Amendment interpretation. II. The Early Giants: Tucker, Rawle, and StoryPart II of this article examines the treatment of the Second Amendment in the first third of the nineteenth century by the three major legal commentators of the era: St. George Tucker, William Rawle, and Joseph Story. This Part also discusses the Supreme Court's first Second Amendment case, the virtually unknown 1820 Houston v. Moore. The Part concludes with discussion of other commentators from the 1830s through the 1850s. A. St. George Tucker: The American BlackstoneThe first scholarly analysis of the Second Amendment is found in St. George Tucker's American edition of Blackstone's Commentaries, published in 1803.(14) 1. Tucker's background The law practice of this young Virginia attorney was interrupted by the American Revolution. St. George Tucker threw himself into the cause enthusiastically, heading up a gun-running operation in which his four small ships sent indigo to the West Indies and Bermuda in exchange for firearms for the Patriots.(15) Acclaimed as "one of the great war heroes of Virginia," Tucker was chosen as head of Virginia's delegation to the Annapolis Convention (the precursor to the Philadelphia Convention).(16) There, he served on a commission with James Madison to meet with state officials and determine to what degree the federal government should have the authority to create uniform rules to facilitate interstate commerce.(17) "[O]ne of the most eminent of Virginia lawyers,"(18) Tucker taught law at William and Mary from 1790 until 1804, when he was appointed a judge of Virginia's High Court of Appeals.(19) He was also "perhaps the most ardent advocate of emancipation in Virginia in the 1790s,"(20) calling it his "dearest wish."(21) President Madison appointed Tucker to the federal bench for Virginia in 1813, where he served until his death in 1827.(22) 2. The central role of Tucker's American Blackstone Tucker's annotated edition of Blackstone quickly became known as the American Blackstone.(23) It was the first treatise on common law written for the needs and conditions of the American legal profession. The treatise consisted of Blackstone's four original volumes, annotated by Tucker, plus numerous appendices on American law and the Constitution. The "five-volume [work] was the standard work on American law for a generation ."(24) Almost every prospective lawyer began his studies by reading Tucker's Blackstone, and some lawyers may never have read anything else.(25) Thomas Jefferson recommended Tucker's Blackstone as part of the course of study for aspiring law students, since the Tucker book was the best source for overall mastery of American law.(26) Before the publication of Chancellor Kent 's Commentaries in the late 1820s, "Tucker's [Blackstone] was the only treatise on American law available in the nation. Until 1827, Tucker was the most frequently cited American legal scholar . . . ."(27) In short, Tucker's Blackstone is "generally considered the single most important early legal text created by an American scholar."(28) Alfred Brophy observes: "When Americans set out to remold law books for use in America, as Henry [sic] St. George Tucker did in 1803 with Blackstone's Commentaries, their results are extraordinarily illuminating about both the mind of Americans and the state of American law."(29) Tucker did not intend merely to reprint Blackstone; he wanted to show how Blackstone's version of the common law had been changed--in the direction of significantly greater civil liberty--by developments in America, especially the ratification of the Constitution and Bill of Rights.(30) 3. Tucker on the right to arms in Blackstone The second volume of Tucker's American Blackstone contains Blackstone's commentary on what Blackstone called the five "auxiliary rights of the subject."(31) These were rights (such as the right to seek legal redress in court, and the right to petition) whose main purpose was to safeguard primary rights.(32) Blackstone had written:
Blackstone was explaining the English Bill of Rights, which provided: "That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law."(34) Tucker added his own analysis in two footnotes:
Tucker's footnote 40 echoed the language of the Second Amendment. He distinguished the American right to arms from its British antecedent by noting that the American right had none of the limitations that were contained in the British right. Tucker 's criticism of the English Bill of Rights paralleled Madison's criticisms in a speech to Congress introducing the Bill of Rights.(37) Tucker's footnote 41 quoted Blackstone's description of the English game laws, with their restriction on the ownership of hunting weapons as having the covert intent of disarming the non-aristocratic population. In his commentary on the game laws section of Blackstone, Tucker added his own condemnation of British practice, contrasting it with the robust right to arms in America:
In fact, Tucker was wrong in his dire description of England; after the overthrow of the Stuarts in 1689, the game laws were no longer used to disarm the common people. The law presumed that a commoner's gun was intended for self-defense (a right guaranteed by the 1689 Bill of Rights), unless the circumstances showed that the gun was used for unlawful hunting.(39) But more important than whether Tucker accurately understood English circumstances is what his widely read treatise shows about the state of American law. Tucker's remarks unambiguously described "the right of keeping and bearing arms as the surest pledge of . . . liberty."(40)
Tucker's American Blackstone contained several appendices, including a lengthy appendix analyzing the new American Constitution. This appendix was "the first disquisition upon the character and interpretation of the Federal Constitution, as well as upon its origin and true nature,"(41) and was used as a legal textbook for many decades throughout the United States.(42) Tucker's constitutional analysis remains powerful in modern times. For example, Tucker was the first scholar to argue that the First Amendment advanced far beyond English common law freedom of press. While freedom of press in England meant only freedom from prior restraints, Tucker argued that the First Amendment left Congress with no power at all to punish newspapers, even after the fact.(43) Justice Hugo Black later observed that Tucker 's appendix set forth "the general view held when the First Amendment was adopted and ever since."(44) Justice Black was right to cite Tucker as the definitive source for original intent. "While Tucker published his [American] edition of Blackstone in 1803, he began writing it in 1790, as he prepared lectures for his courses at William and Mary. The ideas and arguments in his volumes are thus perhaps as contemporaneous to the Founding as it is possible to find."(45) Because "[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,"(46) the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era. In the early nineteenth century Tucker is cited in Fletcher v. Peck,(47) Dartmouth College,(48) Gibbons v. Ogden,(49) Charles River Bridge,(50) and Dred Scott;(51) later in the nineteenth century Tucker appears in the Slaughter-house Cases,(52) Spies v. Illinois(53)(the Haymarket case), and Pollock v. Farmers' Loan and Trust Co.(54) (income tax). Tucker also appears in Dennis v. United States,(55) New York Times v. Sullivan,(56) Harmelin v. Michigan,(57) and U.S. Term Limits v. Thornton,(58) in the twentieth century.(59) 5. Tucker's exposition of the Second Amendment Although Tucker had addressed the Second Amendment in his footnotes to Blackstone, the constitutional appendix gave Tucker the opportunity for a fuller exposition:
Besides asserting that the Second Amendment upholds an individual right essential for liberty, Tucker also argued that even without the Second Amendment, Congress could not disarm "any person" because disarmament could never be "necessary and proper":(62)
Tucker continued his reasoning, using the example of Congressional disarmament as an illustration for the necessity of judicial power to declare laws unconstitutional.(64) St. George Tucker appears regularly in Standard Model articles discussing the Second Amendment.(65) It is perhaps significant that none of the anti-individual writers even admit Tucker 's existence, let alone attempt to address the meaning of the most important law book of the Early Republic. Suppose that the gun prohibition lobbies' claims were correct and the Second Amendment plainly guaranteed only a state 's right to raise a militia. If such were the case, it is indeed strange that not one of the architects of the Constitution offered any objection to St. George Tucker. Most of the framers of the Constitution, including Madison, were alive in 1803 and actively engaged in public affairs. Many were lawyers, and it would have been difficult for them to fail to notice the leading lawyer's book in the United States. Tucker presents an interpretation of the Second Amendment that the anti-individualists would find wrong in every respect: the right is individual, not a state's right; it belongs to everyone, not just militia members; its purposes include defense against tyranny and hunting. And yet, not one of the framers stepped forward to correct Tucker's flagitious misunderstanding of the Second Amendment. Is it reasonable to infer that Tucker--far from grossly misunderstanding the Second Amendment--was merely restating a universal under standing?(66) Might Madison's opinion of Tucker's legal scholarship be inferred from Madison's appointment of Tucker to the Federal bench in 1813?
B. Houston v. MooreThe War of 1812 was unpopular in the Northeast, and many people resisted orders to muster for militia service. Houston v. Moore grew out of a prosecution under Pennsylvania law for failure to perform federal militia duty.(67) In 1814, the Pennsylvania legislature enacted a bill providing that "every non-commissioned officer and private of the militia who shall have neglected or refused to serve when called into actual service" by the President should be punished according to the terms of the federal militia law of 1795. The Pennsylvania law specified that persons accused of violating the law would be tried by a state court-martial.(68) On July 4, 1814, President Madison, acting through the Secretary of War, told the Governor of Pennsylvania to supply militiamen for service in the war against Great Britain. The Pennsylvania militia was to be sent to guard Baltimore and the Delaware River against expected British attack. (Napoleon's recent defeats in Europe had freed the main force of the British army for war against the United States.) Houston refused to serve, was eventually tried by a state court-martial, and fined. He sued in state court to have his fine overturned, lost, and eventually brought the case to the United States Supreme Court. Houston argued that the Pennsylvania law was unconstitutional because Article I, Section 8, Clauses 15 and 16 of the Constitution make Congress the authority over the militia. Clause 15 gives Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."(69) Clause 16 gives Congress the power "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 Unit d 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."(70) Houston's lawyer reasoned that the Congressional power over the national militia is plenary and, therefore, states could not legislate on the subject. Pennsylvania's lawyers responded that Congressional power over the militia was concurrent with state power, not exclusive. They pointed to the Tenth Amendment, which reserves to states all powers not granted to the federal government.(71) Further, they said, the Pennsylvania statute punishing militia resisters was consistent with the similar federal statute punishing resisters.(72) The Supreme Court's opinion was delivered by Justice Bushrod Washington, a nephew of George Washington. Justice Washington concluded that, as a general principle, federal legislation regarding the militia was exclusive. Since Congress had enacted a law punishing militia resisters, the states could not enact their own laws about militia resisters.(73) But, continued Justice Washington, the instant case was different. Here, the question was whether a Pennsylvania court-martial could enforce the federal law. Yes, answered Justice Washington, since the Congressional law creating federal court-martials for militia resisters did not forbid states from enforcing the federal law. And the Pennsylvania statute did not create a new law, but merely enforced the federal one.(74) Thus, the Pennsylvania conviction was upheld.(75) Justice William Johnson agreed with the result, but wrote a separate opinion explaining his reasoning.(76) Analyzing both the federal militia law and the particular militia order to which Houston had been subject, Justice Johnson concluded that Houston could not be prosecuted by the federal government for violating the federal militia law. Accordingly, Houston's prosecution by Pennsylvania did not interfere with any federal powers.(77) Justice Johnson's opinion treated the Fifth Amendment double jeopardy clause as enforceable against the state of Pennsylvania; his opinion was the foundation of nineteenth century argument that, Barron v. Baltimore(78) notwithstanding, the Bill of Rights did apply to the states. Justice Joseph Story dissented.(79) Because Congress had enacted extensive militia legislation, including legislation punishing militia resisters, its authority was exclusive.(80) A state could not legislate with regard to militia resisters. Federal militia control began when the President called forth the militia, not when the militiamen mustered at the rendezvous spot.(81) Part of Justice Story's dissenting opinion addressed a hypothetical: What if Congress, instead of exercising its constitutional power over the militia, neglected the militia? In case of Congressional inaction, wrote Justice Story, the states could act:
Justice Story's hypothetical, fifty-two pages into the case, marks the first appearance of the Second Amendment in Supreme Court jurisprudence. Justice Story's main point was that the state exercise of militia power would not be inconsistent with Congressional militia power, since (hypothetically) Congress would be ignoring the militia.(83) After conceding that the Second Amendment (dubbed the "fifth" amendment in a typo) was probably irrelevant, Justice Story suggested that to the extent the Second Amendment was relevant, it supported his position. Justice Story's point was not unreasonable. The entire Bill of Rights, after all, was animated by fear of federal abuse, and several of the Anti-Federalists raised concerns that the federal government might totally neglect the militia and thereby render it useless.(84) The leading scholar of anti-individual Second Amendment interpretation, Dennis Henigan, argues that the Second Amendment, rather than guaranteeing an individual right, limits some of the federal powers over the militia granted by Article I, Section 8.(85) If Henigan's theory were true--if the Second Amendment were a guarantee of state control over the militia--then the Second Amendment should have been at the center of Houston v. Moore. The precise issue in the case was Pennsylvania's assertion of authority over the militia. Under the state power theory of the Second Amendment, the strongest argument that Pennsylvania's attorneys could have made would have been to point to the Second Amendment. But the Second Amendment never entered their arguments.(86) If the Second Amendment were understood as a right of state governments against federal control of the militia, then the total absence of the Second Amendment in the reasoning of the state's attorneys and the pro-state Justices is inexplicable. Justice Story's dissent is incongruent with Henigan's theory that the Second Amendment somehow reduces Congress's militia powers. In the paragraph following the Second Amendment hypothetical, Justice Story affirmed that whenever Congress is actually exercising its Article I powers over the militia, the power of Congress is exclusive, and there is no room for any state control, "however small."(87) Like the writings of St. George Tucker, the Houston v. Moore decision is absent from the anti-individual articles. Unlike the American Blackstone, the 1820 Houston case is not contemporaneous with the creation of the Second Amendment, but neither is it far removed from the founding era. And the implications of the case are just as inconsistent with the anti-individual theories of the Second Amendment as are the direct statements made by St. George Tucker.
C. William RawleSupplanting Tucker's Blackstone as the leading American constitutional treatise was William Rawle's 1825 A View of the Constitution of the United States of America.(88) A View of the Constitution was used, among other places, at the United States Military Academy at West Point.(89) The treatise enjoyed sufficient popularity for there to be a second edition, and there would have been a third had Rawle not passed away in 1836.(90) Like Tucker, Rawle was a distinguished attorney long before he became an "influential treatise writer."(91) Elected to the Pennsylvania legislature in 1789, Rawle declined George Washington's repeated offers to serve as the first Attorney General.(92) Rawle accepted Washington's appointment as United States Attorney for Pennsylvania, however, and held the post from 1792 to 1800.(93) A prodigious scholar, Rawle authored many law books in addition to his constitutional treatise, although the treatise is the only one that remains in print today. "[O]ne of the most respected lawyers of the day,"(94) he also founded Rawle & Henderson, which is now the oldest law firm in the United States.(95) Rawle described the Second Amendment at length:
Rawle's analysis of federal powers over the militia noted the value of widespread arms ownership to a good militia:
Rawle discussed Houston v. Moore and argued strongly against the "states' rights" position on this issue; he suggested that federal determination of the necessity of a militia call-up was unreviewable by state governments or by the courts.(98) Rawle's high regard for the militia was typical of his time. He clearly explained that the Second Amendment does not protect only potential militia members, for "[t]he prohibition is general."(99) (Thomas Cooley's treatise, half a century later, would echo Rawle on the Second Amendment, stating "The Right is General."(100)) Writing long before Barron v. Baltimore refused to enforce the Bill of Rights against the states,(101) Rawle considered the Second Amendment a limit on state and federal disarmament of the people. And writing a century and a half before the Congressional power "to regulate commerce . . . among the several States" was construed as a power to ban the simple intrastate possession of firearms,(102) Rawle stated that, even putting the Second Amendment aside, Congress would have no power to disarm the people.(103) Like Tucker's Blackstone, Rawle's A View of the Constitution is cited by the Standard Modelers,(104) but is conspicuously absent from law review articles asserting that the Second Amendment is not an individual right.(105)
D. Joseph StoryThe American Republic's next major constitutional treatise was the 1833 Commentaries on the Constitution of the United States,(106) written by Joseph Story while teaching at the Harvard Law School. Story was the dominant legal figure of pre-Civil War America.
President Madison appointed Joseph Story to the Supreme Court in 1811; at age 32, he was the youngest man ever nominated.(108) He served on the United States Supreme Court until 1845. After John Marshall, no Justice of the early Court is considered more influential on Supreme Court jurisprudence. In 1840, Story authored an expanded version of the Commentaries, and also wrote a popularized version, entitled Familiar Exposition of the Constitution of the United States. Story's constitutional treatises differed in important ways from their predecessors; he was far more enthusiastic about broad federal powers. Rawle had explicated the authority of states to secede from the Union.(109) But Story almost single-handedly created the doctrine of an indissoluble Union, a doctrine which would carry the day intellectually in the North. Each of Story's treatises was "a major success" and some were still in use in the twentieth century.(110) 1. The Second Amendment in Story's Commentaries Story's commentary on the Second Amendment would later be quoted in numerous Standard Model law review articles. For example, the following Story quotation appeared in Sanford Levinson 's 1989 article The Embarrassing Second Amendment:
In response to Levinson's quotation of Story in his article, Dennis Henigan accuses Levinson of purposely omitting the remainder of Story's passage, which states:(113)
However, nothing in the second part of the passage (quoted by Henigan) changes the meaning in the first part (quoted by Levinson). In both parts, Story sought to maintain militias as a counterweight to a standing army. He bemoaned the declining interest of the people and their state governments in militia training. Nothing Story said in the second through fourth sentences changes the meaning of Story's first sentence, which asserts that the right to bear arms belongs not to state governments but to "the citizens." The purpose of this right is to deter tyranny and allow popular revolution to unseat a tyrant. Henigan does some selective quoting of his own. While he chastises Levinson for not quoting a footnote in which Story denounced standing armies,(115) Henigan omits two other Story footnotes(116) citing passages from Tucker and Rawle(117) enthusiastically praising the wide scope of the individual right to keep and bear arms.(118) The above passages from Justice Story were quoted by an 1871 Tennessee Supreme Court opinion as authority for the exact point that the Second Amendment, in order to secure a militia, guarantees a general right of individuals to have weapons.(119) Story concluded by contrasting the strong right in America with the weak one in England:
Here, Story closely tracked Madison's notes on the Second Amendment, in which Madison contrasted the Second Amendment with the narrower English right, the latter being unsatisfactory because it was confined to Protestants.(121)
Story's 1840 constitutional law book intended for a popular audience, Familiar Exposition of the Constitution of the United States, contains some Second Amendment material not found in the Commentaries. The Familiar Exposition removes any possible doubt that Story saw the Second Amendment as guaranteeing an important individual right:
Can any fair-minded reading of Justice Story support Henigan's position that the federal government has the unquestioned constitutional authority to outlaw the possession of firearms in the United States? Or would Story bemoan Henigan's organization--whose members were never required by their state governments to possess arms and to learn how to use them in militia drill--as fulfilling Story's fears "that indifference may lead to disgust, and disgust to contempt"? One of Henigan's central errors is his "either/or" view of the militia. Story saw the militia as a defense "against . . . domestic insurrections."(123) Henigan finds this insurrection-suppression view to be "itself inconsistent with the notion that the militia is the armed citizenry poised to engage in domestic insurrection."(124) But Story also exulted that when "citizens" are armed, they can resist usurpation; the right to bear arms allows the "people to resist and triumph over" their oppressors. Indeed, Justice Story explicitly promoted the dispersion of armed force in a society as facilitating needed changes in government.(125) Nor was violent resistance to tyranny an abstract notion to Story; his father had been one of the Indians in the Boston Tea Party.(126) The notion that the American people could be trusted both to suppress illegitimate insurrections and to overthrow tyranny may seem self-contradictory to late twentieth-century American antigun lobbyists. But it was an obvious truth to Justice Story.(127)
Story's treatise also contained an extensive section on the militia powers in Articles I and II of the Constitution.(128) Story extolled the militia and explained that while the posse comitatus (the able-bodied males of the county subject to the sheriff's call to enforce the law) would suffice for maintaining law and order in most situations, there were some circumstances in which either a militia or a standing army would be necessary.(129) Story disparaged anti-federalist fears about granting federal power over the militia. He noted that these fears "produced some propositions of amendment in the state conventions, which, however, were never duly ratified, and have long since ceased to be felt, as matters of general concern."(130) Here, Story directly undermined Henigan's theory of the Second Amendment. Henigan claims that the Second Amendment was a restraint on the federal government's militia powers.(131) Story claims that none of the proposals for restrictions on federal militia powers were ever ratified. Story then discussed in great detail the division of federal and state powers over the militia. He suggested, "If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it."(132) In support of this proposition, Story cited Houston v. Moore, Rawle's treatise, Tucker's Blackstone, and various portions of Elliot's De bates.(133) While Story's dissent in Houston v. Moore had sug gested that the Second Amendment, if relevant at all, would also support this proposition, Story did not in his Commentaries cite the Second Amendment for support of state militia powers. Story went on to define other state/federal militia boundaries; he noted that when the militias were not in federal service, Congress had no power to discipline and train them, such power being "exclusively vested in the states."(134) For this proposition, Story cited Federalist 29 and the Tucker and Rawle treatises (again, not parts dealing with the Second Amendment).(135) The treatise continued for eight more sections to discuss various state/federal militia issues, such as the power to call the militia into service, to govern the militia, to court-martial, and to command the militia. Never once did Story hint that the Second Amendment had any relevance to these issues. If, as Henigan claims, Story read the Second Amendment the
way Henigan does, it is inexplicable how Story's treatise could minutely dissect the
boundaries of state/federal militia powers without once mentioning the Second Amendment.
The only plausible interpretation of Story's treatment of the militia in his Commentaries
is that proposed by the Standard Model of the Second Amendment, in which the Second
Amendment does not reduce the scope of the Congressional militia powers in Article I, or
the Presidential militia powers in Article II. E. Other Pre-1850 SourcesHenry St. George Tucker was the son of St. George Tucker, author of Tucker's Blackstone.(136) The younger Tucker served as U.S. Representative from Virginia (1815-19), as President of the Virginia Supreme Court,(137) and as law professor at the University of Virginia (1841-45).(138) He declined President Jackson's offer to serve as United States Attorney General.(139) In 1831, he wrote a three volume treatise Commentaries on the Law of Virginia.(140) Although he followed Blackstone's organization, the treatise was entirely Tucker's own, and it represented an important step forward in the development of distinctly American law. This treatise "was standard fare for aspiring lawyers"(141) and was "the primary reference source for the bar of Virginia" until the Virginia Code was adopted in 1850.(142) Tucker had created the "vade mecum(143) of the bar of Virginia. . . . It was recognized by the bar of Virginia, and in many of the Southern State s, as the most valuable text-book for students and lawyers then in existence."(144) Tucker's work "established the standard for American treatise writing, helped organize American law, and provided access to it for attorneys distant from law libraries."(145) Explaining "the principal absolute rights of individuals," Tucker wrote:
Tucker continued, quoting Blackstone's formulation of the English right to arms. Tucker added that this right "is secured with us by Am. C. U. S. art. 4."(147) (Like some other writers of the period, Tucker numbered the amendments as they were when sent to the states for ratification by the first Congress.) When human rights were violated, Tucker concluded, the citizen was entitled first to justice in the courts, "next to the right of petitioning for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence."(148) While all of the rights Tucker described were "our birth right to enjoy entire," they could be subject to "necessary restraints" which were "gentle and moderate."(149) 2. Benjamin Oliver Benjamin L. Oliver was "a writer of law books, a noted chess player, and son of a former Governor of Massachusetts."(150) His 1832 The Rights of an American Citizen contained a chapter entitled "Of the rights reserved to the people of the United States; not being granted either to the general government, or the state governments." This chapter explained the Second Amendment "right of the citizens to bear arms" as making it possible for a militia to combat invasion, insurrection, or usurpation.(151) An 1822 Kentucky decision, Bliss v. Commonwealth, interpreted the state's constitution to find a law against carrying concealed weapons (the first American weapons control law of general applicability) to be unconstitutional.(152) Oliver thought that carrying concealed weapons, "if it is really unconstitutional to restrain it by law, ought to be discountenanced," since concealment allowed an antagonist to surprise a victim.(153) Still, "[t]here are without doubt circumstances, which may justify a man for going armed; as, if he has valuable property in his custody; or, if he is traveling in a dangerous part of the country; or, if his life has been threatened."(154)
James Bayard's A Brief Exposition of the Constitution of the United States was intended as "a text-book for the instruction of youth."(155) The book was adopted by some colleges and seminaries and was praised by Chief Justice John Marshall, Justice Joseph Story, Chancellor James Kent, "and other distinguished jurists," according to the author.(156) The small book took the reader through the Constitution clause by clause, offering short explanations of the meaning and background of each provision. Bayard wrote that the Second Amendment "secures the right of the people to provide for their own defence."(157) This short statement is not, in isolation, necessarily inconsistent with the Standard Model or with the anti-individual theories. One could read the language, Standard Model-style, as "the Amendment guarantees the pre-existing right of people to protect them selves with arms." Or one could, with a little more effort, read Bayard's language Henigan style: "the Amendment protects state governments from federal interference, so that the people may be defended by state militias." Any confusion arising from Bayard's terseness on the Second Amendment is clarified by his discussion of the Third Amendment, which prohibits quartering troops in private homes under most circumstances.(158) Bayard detailed its historical back ground: "The people of this country, while under the dominion of England, had felt too sensibly the evils arising from the want of arms . . . not to take every precaution against their recurrence."(159) Formally, Bayard's reference to "the evils arising from the want of arms" makes no sense in a Third Amendment discussion. The Third Amendment keeps soldiers out of homes, but does nothing to prevent "the want of arms." Historically, however, the Second and Third Amendments were closely linked, and they are placed next to each other because both were intended as checks against the dangers of militaristic tyranny on the part of the central government. The disarmament of individual citizens, the replacement of the militia by a standing army, and the abuses of a standing army (including the forced quartering of soldiers in private homes) were closely linked to the abuses of King Charles I, which precipitated the English Civil War,(160) whose history the Americans knew well--especially since similar abuses helped precipitate the American Revolution. As the Founders also knew from reading Montesquieu and others, the quartering of soldiers was one of the major abuses perpetrated against the disarmed French Huguenots by Louis XIV in the 1690s.(161) Thus, it was not unreasonable for Bayard to address the problems of centralized militarism in one unified discussion. Knowing "the evils arising from the want of arms," the Americans took "every precaution against their recurrence," and it is therefore impossible to read Bayard as supporting Henigan's theory that the federal government may constitutionally disarm the American people. 4. Francis Lieber One of the most important of America's early political scientists was Francis Lieber, a German immigrant. He taught history, political science, and public law at South Carolina College, Columbia College, and Columbia Law School. His code of military conduct for land warfare, written for the Union Army during the Civil War, later became part of the Geneva and Hague Conventions.(162) Lieber's main contribution, however, was his analysis of how a society could create complex institutional structures to promote civil liberty; the fullest exposition of his political thought is found in his book On Civil Liberty and Self-Government, first published in 1853.(163) In the penultimate paragraph of a chapter discussing control of standing armies and the Third Amendment, Lieber wrote:
Lieber recognized the individual right of "every citizen" to bear arms; he did not even quote the militia clause of the Second Amendment. Unlike Tucker, Rawle, and Story, who distinguished the broad American right to arms from its feeble English ancestor, Lieber saw the English right as robust and identical to the American right. (Lieber's general theme was to contrast the strong rights in Anglo-American law with the weak or non-existent rights in France and the rest of Europe.) The endorsement of concealed weapons control laws, followed by the complaint about American attitudes, might reflect the fact that outside the Southeast and the state of Indiana, there were no concealed weapons laws or any other sort of gun control at all. And, as Lieber ruefully recognized, Americans were often too quick to resort to private revenge, rather than to the judicial system.(165) 5. Elliot's Debates Jonathan Elliot's 1836 compilation, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, is still the major documentary source for its subject. Elliot 's "Digest of the Constitution" indexed the various Constitutional provisions. Under the index heading "Rights of the citizen declared to be--," there is a listing for "To keep and bear arms," and other rights from the first nine amendments. In contrast, the Tenth Amendment, unquestionably a "states' right," was not included in the heading "Rights of the Citizen."(166) 6. Webster's Dictionary The legitimacy of the American version of the English language found its truest champion in Noah Webster. Webster's father served as a captain on the "alarm list" of the militia near his Hartford farm,(167) and the family strongly supported the Revolution. Noah Webster's first major work was the American Spelling Book (1783), of which millions of copies were eventually printed. He published his first dictionary in 1806, the Compendious Dictionary of the English Language.(168) But his revered classic came in 1828, the two-volume American Dictionary of the English Language.(169) By examining the Second Amendment word-by-word, as defined by Webster, we see the meaning of the Amendment's words in the nineteenth century. "Regulated" meant "[a]djusted by rule, method or forms; put in good order; subjected to rules or restrictions."(170) As Randy Barnett has observed in relation to the Congressional power to "regulate" interstate commerce, to regulate something means to make it more regular--not to prohibit it.(171) "Militia" was
"Necessary" meant "indispensibly requisite . . . ."(173) "Security" was "[p]rotection; effectual defense or safety from danger of any kind."(174) "Free" meant "[i]n government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation, or people."(175) "State" meant
Thus, "state" is not just the "government." The Second Amendment aims to protect the security of a free American people, not just to protect their government. "Right" was a "[j]ust claim; immunity; privilege. All men have a right to secure enjoyment of life, liberty, personal safety, liberty, and property. . . . Rights are natural, civil, political, religious, personal, and public."(177) "People" meant "[t]he body of persons who compose a community, town, city or nation. We say, the people of a town; the people of London or Paris; the English people."(178) "Keep" was "[t]o hold; to retain in one's power or possession."(179) "Bear" meant firstly, "[t]o support; to sustain; as, to bear a weight or burden"(180)--a meaning that does not fit with the context of the Second Amendment. The second and third meanings of "bear" are much more congruent, however: "To carry; to convey; to support and remove from place to place" and "[t]o wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat."(181) It is sometimes argued that "bear" has an exclusively military connotation, so that the right to "bear" arms refers only to bearing them in militia service.(182) But none of Webster's definitions for bear contain such a narrow construction. And rather significantly, we know that "bear" was used with a broad meaning in one of the key documents that gave birth to the Second Amendment: the minority report from the Pennsylvania ratifying convention. The minority demanded constitutional protection for the right of the people "to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game."(183) Hunting--"killing game"--is obviously a personal, non-militia purpose for which one could "bear arms." Further, the state constitutions of Missouri (1820), Indiana (1816), Ohio (1802), Kentucky (1792), and Pennsylvania (1776) all recognized a right of citizens to "bear arms" in the "defense of themselves and the state."(184) While arms-bearing for defense of "the state" would be in a militia context, citizens bearing arms merely for "defense of themselves" would merely be defending themselves against criminal attack. Hence, the phrase "bear arms" did not connote that arms-bearing could only occur while in active militia service. In a 1998 case, the Supreme Court was called upon to construe the meaning of the phrase "carries a firearm" in a mandatory sentencing statute. While the majority opinion did not refer to the Second Amendment, Justice Ginsburg, writing for four dissenters, used the Second Amendment to help explain the phrase:
Justice Ginsburg's reading of the Second Amendment is thus consistent with the reading suggested by Webster's Dictionary. "Arms" meant "[w]eapons of offense, or armor for defense and protection of the body . . . . A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary."(186) Webster's definition offers two useful insights. First, the distinction sometimes drawn between "offensive" and "defensive" weapons is of little value. All weapons are made for offense, although they may be used for defensive purposes (i.e., shooting someone who is attempting to perpetrate a murder). Second, Webster's dictionary suggests that the "arms" protected by the Second Amendment may include more than just weapons. The Amendment may encompass "armor for defense and protection of the body." The defensive aspect of arms would be relevant to legislative proposals to prohibit non-government possession of bullet-resistant vests. Finally, "infringed" meant "[b]roken, violated, transgressed."(187) How would the Second Amendment read if rephrased according to Webster's dictionary?
While hardly as elegant as the Second Amendment, Webster's dictionary does point us in the same direction as do the legal commentators who argue that the militia (an essential institution of a free society) will only be effective as long as the people are guaranteed the ownership of arms. In fact, Noah Webster himself, during the ratification debates, provided a concise summary of why the entire population should be armed:
In sum, all of the pre-1850 sources analyzed above--including the leading treatises, the lesser treatises, other books, and the Supreme Court's Houston case--support the Standard Model approach to the Second Amendment: the Amendment grants an individual right to bear arms.
III. State Constitutions and Case LawThe nineteenth century was a fertile period for the right to bear arms in state courts and in state constitutions. Many of these state sources provide a good deal of useful information about how the Second Amendment was understood. This Part discusses state constitutional texts first and then discusses state case law. The purpose is not to comprehensively survey the nineteenth century arms rights cases,(189) but rather to survey state materials solely as they may shed light on the federal Second Amendment.
A. State ConstitutionsThe texts of nineteenth century state constitutions are worth reviewing for several reasons. First, the large number of state provisions suggests that the right to arms was considered an important human right. Of the thirty-six states that were admitted or readmitted to the Union in the nineteenth century, twenty-eight provided a right to arms provision in their state constitution.(190) Several states adopted right to arms provisions repeatedly--first upon admission to the Union, then upon readmission shortly after the Civil War, and again upon creation of a new Constitution under Reconstruction. The Confederate States of America also put a right to arms in their national Constitution.(191) Second, states often thought it necessary to specifically enumerate the exceptions to the right to arms. Many constitutions contain a specific exception allowing restrictions on concealed carry. Open carry was considered honorable, but concealed carry was seen useful only to people who wanted to surprise a victim. Louisiana's constitution, for example, closely tracked the Second Amendment, but added an exception against concealed carry: "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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed."(192) This concealed carry exception, which was aimed at individuals, shows that the Louisiana right was an individual one. The close reliance on the language of the Second Amendment further suggests that, at least to those who drafted and ratified the Louisiana Constitution, the Second Amendment was seen as protecting an individual right. Similarly, Georgia during Reconstruction adopted a Bill of Rights copied nearly verbatim from the federal Bill of Rights. The arms provision stated: "A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne."(193) The Georgia Supreme Court has had no difficulty in upholding this provision as protecting the right of individual Georgians to own and carry guns. At the same time, the court relied on the Constitution's express grant of authority to regulate the conditions of carrying as reason for upholding a state law prohibiting deadly weapons at election grounds, courts, churches, and other public gatherings.(194) Third, state constitutional arms provisions that address the issue of the military and standing armies were not seen as inconsistent with individual rights. Opponents of the individual rights view of the Second Amendment normally point out that the Founders were gravely concerned about standing armies (true), that they saw state militias as a counterpoise to a federal standing army (also true), and that during the ratification debates over the proposed federal Constitution, many anti-federalists worried that the new federal government would destroy the state militias (also true). The anti-individual theorists then claim that because the Founders saw militias as a protection against standing armies, the Second Amendment, therefore, guaranteed only the right of state governments to have militias.(195) But state constitutions show us that an anti-standing army arms right provision can also be an individual right provision. For example, the Ohio Constitution of 1851 stated, "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power."(196) Ohio courts have always treated this provision as guaranteeing an individual right.(197) Likewise, the 1868 North Carolina Constitution provided:
This language quoted the Second Amendment but added additional language denouncing standing armies. Surely if the anti-individual view of the Second Amendment were correct, then the North Carolina language (even more heavily weighted with anti-army language) could not be construed as an individual right. But the North Carolina language was indeed so construed. In 1875, the North Carolina legislature added concealed weapons control to the state constitution: "Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice."(199) The anti-concealed weapons language was obviously aimed at individual arms carriers, not at the state militia. And North Carolina courts consistently interpreted the provision as guaranteeing an individual right.(200)
B. State Case LawExcept for some statutes late in the century banning arms from public parades, gun control in the nineteenth century was almost exclusively a Southern phenomenon. In the post-Civil War period, the Southern gun laws were clearly aimed at controlling the Freedmen; although written in racially neutral terms, the laws were meant for, and applied almost exclusively to, blacks.(201) As for the antebellum period, scholars have speculated that the Southern controls were aimed at free blacks. But Clayton Cramer has shown that the antebellum laws, which were written in facially neutral terms in a period when there was no Fourteenth Amendment to require racial neutrality, had a different purpose. Dueling had been widely practiced in the Southeast; legislative efforts to outlaw dueling had been undermined by the courts and by juries. In the absence of regulated dueling, Southerners whose honor had been offended simply killed the offender. The concealed weapons laws were an extension of the antidueling laws and were intended to prevent the victims of insults from killing the insulter. Legislatures accurately expected massive resistance to the laws, and therefore included many special enforcement mechanisms, such as allowing private citizens to bring criminal prosecutions and forbidding juries to consider the defendant's motives.(202) The solid majority of courts that reviewed the gun control laws, which were often challenged under the Second Amendment and its state analogues, would uphold the particular control, while affirming an individual right to own and carry guns. 1. Tennessee One of the most important state gun cases in the nineteenth century was Aymette v. State, an 1840 decision upholding restrictions on carrying concealed weapons.(203) The decision was based on the Tennessee Constitution's right to arms, but the court stated that the Tennessee provision was intended "[i]n the same view" as the Second Amendment.(204) The Aymette court read the Tennessee provision (and, by analogy, the Second Amendment) narrowly, finding that the right to arms was only so that the people as a whole could rise up against tyranny; the right was not for "private" defense.(205) Further, the right to "bear arms" meant only the right to carry weapons in a public military context, not to carry concealed weapons for personal protection.(206) Given the anti-tyranny purpose of the right, the only arms protected were weapons useful for resisting tyranny, but not those useful mainly for crime:
As to the weapons which were protected:
Aymette laid down the line followed by the majority of state courts considering right to arms cases: the right was for protection from tyranny; the right encompassed the ownership of weapons useful for resisting tyranny; but the right did not encompass the carrying of concealed weapons not suitable for resisting tyranny.(209) After the Civil War, the Tennessee Supreme Court decided another case, Andrews v. State, which elaborated on the principles of Aymette, and which, like Aymette, was widely cited in other states.(210) The Tennessee legislature had banned the carrying of certain weapons--concealed or openly--and several defendants charged with violation of the law argued that the law violated the Second Amendment and the Tennessee Constitution. The summary of the briefs at the beginning of the case shows that, regarding the Second Amendment, the Attorney General simply replied that the Second Amendment was not enforceable against the states.(211) In oral argument, apparently, the Attorney General went further, arguing that the Second Amendment and the Tennessee state constitutional right to arms were meant to protect a "political right."(212) Citing Barron v. Baltimore,(213) the Andrews court held that the Second Amendment was inapplicable to the states.(214) But the Court construed the Tennessee provision and the Second Amendment together, finding "that, necessarily, the same rights, and for similar reasons, were being provided for and protected in both the Federal and State Constitutions . . . ."(215) The court's construction of the state and federal right to arms is worth quoting at length, because it is a perfect example of the dominant line of nineteenth-century case law on the right to arms, expressing several principles:
As the court wrote:
The court then quoted at length from Justice Story's treatise on constitutional law:(220)
The court quoted additional material from Justice Story and shared his worries about the neglect of the militia. The court also quoted the earlier Tennessee case, Aymette v. State,(222) and its invention of the "civilized warfare" test for determining the types of arms constitutionally protected.(223) The Tennessee statute had forbidden the concealed carrying of, among other small weapons, any "pocket pistol."(224) The Tennessee Supreme Court ruled that whether the defendant's revolver was a weapon--the "skill in the use of which will add to the efficiency of the soldier"--was a matter for decision at trial, based on the evidence.(225) The instant statute was clearly unconstitutional, however, because it forbade all carrying, rather than just concealed carry.(226) A concurring and dissenting opinion argued for a broader rule than the majority, not limiting the type of arms to "civilized warfare" weapons and allowing only the "regulation" of concealed carry, but not its prohibition.(227)
The anti-individual interpretation of the Second Amendment made its first appearance in a concurring opinion in an 1842 Arkansas decision upholding a law against carrying concealed weapons against a challenge under the Arkansas Constitution and the Second Amendment.(228) Existing Arkansas case law provided sufficient authority to uphold the law, but the court majority went further, offering a narrow construction of the Second Amendment and its corresponding provision in the 1836 Arkansas constitution.(229) The majority argued that:
According to this Arkansas court, the sole purpose of the Second Amendment was to secure a well-regulated militia: "the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted."(231) The Amendment was based on the theory
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