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Is the Second Amendment an Individual Right?
June 9, 2008
Stephen P. Halbrook, Joyce Lee Malcolm

Contents

David J. Theroux
President, The Independent Institute

Good evening ladies and gentlemen.  My name is David Theroux and I’m the president of the Independent Institute.  I’m delighted to welcome you to our event this evening.  We hold a series of what we call Independent Policy Forums on a regular basis here in Washington, and also in Oakland, California. 

Our program, as most of you know, is especially timely.  The U.S. Supreme Court is considering the landmark case on the meaning of the Second Amendment, entitled District of Columbia v. Heller, and consequently out event is entitled, “Is the Second Amendment an Individual Right?” 

We’re very pleased to have two distinguished scholars speaking this evening.  Stephen Halbrook, who is the author of a new book that we sponsored called The Founders’ Second Amendment, which I hope everyone will buy many copies.  And we’re also quite delighted to have the legal scholar Joyce Malcolm with us this evening, and we’ll be able to benefit from their perspective on these and related issues.

For those of you who are new to the Institute, hopefully you got a packet about our program.  You’ll find information about upcoming events, our publications and other aspects of our program, including our work in the media. 

The Institute is a scholarly public policy research foundation.  We sponsor in-depth studies by various scholars, and publish many books. We also publish a quarterly journal called The Independent Review.  This is the current issue, and our complementary copy is downstairs for any of you interested in getting a copy. 

We also invite you to go to our website, which is Independent.org.  You’ll find many studies and publications, transcripts, and many other bits of information about the topic of tonight, and many other issues that we’re involved in on a regular basis. 

We also have a weekly e-mail newsletter, called The Lighthouse, which is free, and any of you who are not receiving would be welcome to receive it.  Just make sure that we have your e-mail address, we’d be happy to make sure that you get that each Monday.

Lastly, before I begin, I want to mention that each summer we conduct a series of seminars for students—high school and college students—and this summer is no exception.  We hold those in Oakland at our conference center.  If you have students in your family, or have friends, or are students, we would encourage you to consider that.  There should be information in your packet, and if you have any questions, please also let me know.

Last year, a federal appeals court overturned the District of Columbia’s ban on handguns, and as I mentioned, the Supreme Court will soon decide the case after nearly 70 years of silence on this issue.  Many observers believe that the court will finally settle the legal question of whether the constitutional right of the people to keep and bear arms is an individual right or a so-called collective right of state governments to maintain militias.  What, indeed, did the founders intend in their writings, their speeches, and their thinking and their debates about the Second Amendment? 

And to address this, we’re very pleased to have our speakers tonight.  The order that I thought we would proceed is have Professor Malcolm first speak, and then have Dr. Halbrook follow, and then we would have a period of Q & A. 

So I’m delighted to introduce our speaker.  Dr. Joyce Lee Malcolm is Professor of Legal History at George Mason University School of Law.  She’s an historian and constitutional scholar active in the field of constitutional history, and many other fields.  Her work is focused on the development of individual rights in Great Britain and America. 

She received her Ph.D. in History from Brandeis University.  She’s a fellow of the World Historical Society.  She has previously taught at Princeton, at Bentley College, Boston University, Northeastern University, and Cambridge University.  She’s also served as director of research at the National Endowment for the Humanities.  She’s been a senior advisor at the MIT Security Studies Program.  She’s been a visiting scholar at the Massachusetts Center for Renaissance Studies, and a bi-fellow  at Robertson College at Cambridge. 

I’d like to heartily recommend her books.  One of her most famous books is a book called, To Keep and Bear Arms: The Origins of an Anglo-American Right.  She’s also the author of Guns and Violence:  The English Experience; Caesar’s Due: Loyalty and King Charles; Stepchild of the Revolution: A Slave Child in Revolutionary America, which is coming out I guess this year, right?  And the two-volume set called The Struggle For Sovereignty: Seventeenth-Century English Political Tracts, which she edited. 

Her scholarly work has appeared in many journals, both popular and academic, and it’s a great pleasure to have Joyce with us.

Joyce Lee Malcolm
George Mason University; Author: To Keep and Bear Arms

Thank you very much. 

So with that background, you may wonder how I got into the Second Amendment, and I must say, it’s been very exciting to be able to actually apply an English history and colonial American history to a burning constitutional issue, and one that we hope will finally be resolved with wisdom by the Supreme Court. 

As most of you know, I’m sure, the Second Amendment has fallen on hard times, and there’s a great deal of confusion, not about the scope of it so much as about the original intent of it, and the actual meaning.  It’s probably the only right in the Bill of Rights where that’s the case, where it’s the actual meaning that is at issue rather than how it ought to be applied. 

Judge Alex Kozinski, who I guess is not just mine but a favorite of many, who sits on the 9th Circuit, was chastising his fellow justices for treating the Second Amendment in a very cursory fashion and claiming that it didn’t really include any individual right.  And he said, “It’s wrong to use some constitutional provisions as springboards for major social change, while treating others like senile relatives, to be cooped up in a nursing home until they quit annoying us.”  He also referred to the Second Amendment as being treated like a crumpled gum wrapper.  When you’re done, you just toss it away.

For many years after the Second Amendment was ratified, there was really no controversy that it included and was focused on an individual right.  And it’s just really been the 20th Century, and particularly the last part of it, where there’s been a controversy. 

The beginning early in the 20th Century, there were concerns about immigrants coming into this country, flooding the Northeast, and New York passed its Sullivan Act in 1911 as a way of sort of trying to ensure that this rabble did not have a right to be armed, or to curtail that by insisting on registration, and in the South, there were efforts to keep African Americans from being armed, so it was fear of the wrong people being armed that caused them to start limiting it.

I’m just going to briefly refer to, I think, in some cases, rather ingenious theories of why the Second Amendment does not mean what it says, that the right of the people to keep and bear arms shall not be infringed.  I suspect that this audience is probably familiar with some and maybe all of them, but some of them, I think, are rather humorous.  They really have them seriously argued. 

The main one, of course, is the insistence that the Second Amendment is really only conferring a right of states to have an armed militia, and it’s only members of that militia that have a right to be armed.  So it’s either a right for the states to have militia—which, presumably if you read the Constitution, they already have—or if you were a militia member, in conjunction with your militia service, you are entitled to have a weapon.  That would be an odd militia if you couldn’t.  And in this sense, it’s referred to as a collective right, not an individual right. 

So no individual has that right, but somehow the collective has the right. I must say, thinking about constitutional rights, it’s hard to see how anything can be a collective right and not be an individual right.  You have a right to assemble, but each of you has no individual right to assemble. 

But if they admit that there’s an individual right, people say, well yes, there was originally meant to be an individual right, but it’s an anachronism.  We have police now.  We don’t need any individual right.

The expression “to keep and bear arms” is shortened “to bear arms,” and “bear” is assumed to be only used in a military context, not to keep—to carry something around with you, and the word “keep” is quietly forgotten or linked inexorably to “bear,” so it’s “keep and bear,” and the keep part is somehow meant to be excised. 

Then one of my favorites is Carl Bogus’s theory of why it’s not an individual right.  And Carl Bogus’s theory is that it was a plot of the Southerners that the Northerners cooperated in, in order to keep the slaves down.  Of course, there were slaves in the North at the same time.  Anyway, I love to call it the Bogus Theory, and until he changes his mind, I will continue to do that. 

There’s also the comma theory.  Different versions of the Second Amendment have different amounts of commas, but the comma theory, which has been seriously argued in legal briefs, is that since “the right of the people to keep and bear arms” is set off by commas, it can be eliminated.  And presumably, if you went through the Constitution and eliminated every phrase set off by commas, it would be a very interesting document that you would end up with. 

There’s also the idea that it only protects 18th Century weapons, as if the right to freedom of speech wouldn’t affect any modern technology.  It was only actual speaking without microphones, even back in the 18th Century. 

Well, these are some of the theories, and by 1975, the American Bar Association decided to have a committee study the meaning of the Second Amendment, and confused by all of this, they were so befuddled that they did agree that there was less agreement and more misinformation and less understanding of the right of citizens to keep and bear arms than on any other current controversial issue. 

And they came to the conclusion that, of course, the crux of the controversy was the construction of the Second Amendment to the Constitution.  They conclude, quote, “It is doubtful the founding fathers had any intent in mind with regard to the meaning of this amendment.” 

Here’s this group of learned lawyers and they felt that the founders had no intent.  Presumably, they just needed something between the First Amendment and the Third Amendment, and so they came up with this idea.

But, unfortunately, I think in law schools some of these theories, particularly the collective rights theory, have been taught for many years.  Laurence Tribe’s great textbook, American Constitutional Law, in the first edition, 1979, had reduced the Second Amendment, literally, to a footnote.  I mean, if you look through it, it is just a footnote.  Ten years later, 1989, when he came out with the next edition, it graduated to have a couple paragraphs.  And I am happy to say that in 1999, his latest edition, there were 10 pages allotted to it, and he, at that point, decided that it actually was an individual right.

My own work has been, as David said, on the English right and the background, and I’m going to just briefly go through that.  I want to leave time for Steve Halbrook to speak and for you to have a chance to ask questions. 

But I was very pleased that in the appeals court’s decision in the Heller case here in Washington, D.C., that they pointed out that the Second Amendment did not create a right, but in fact, preserved a right, and I think that that was clear from the research that I’ve done. 

The English right actually started as a duty rather than a right.  People actually had a duty to protect themselves, protect their family, and protect their neighbors.  If you didn’t carry out that duty, you could be fined or punished.  You had a duty to keep the peace, and in fact, protecting yourself was a way of keeping the king’s peace.  You also had a duty to answer the “hue and cry” when somebody committed a crime, and you had to appear with your weapons and follow the sheriff, and chase this person from town to town, as they said, and county to county in order to get them. 

People took turns standing watch. And also some people had a duty, those who were within certain ages, to be a part of a militia and train with the weapon of the day.  First it was the longbow, and then, reluctantly, they gave up the longbow and switched to muskets. 

But all of the time, it was the duty and not really a right, or at least it was never referred to as a right.  You were obliged to keep certain weapons.  You were obliged to use them to keep the peace and protect yourself, and it was not until after the English Civil War, where the Parliament and king were fighting each other and where people were being forcibly disarmed. Particularly the king was fond of summoning the militia and their best weapons to appear, and then he took their best weapons and sent them home. 

So after this happened a few times, the militia numbers admitted that when the king ordered them to appear, they were going to appear, but their arms were going to stay at home so they’d have them to go back to. But there was a lot of anxiety about being disarmed.  And when the monarchy returned to power, they began to use a sort of select militia to disarm their opponents.  And by 1688, ’89, the time of the English Glorious Revolution, when William and Mary come in, a bill of rights is drafted to affirm English rights. 

And all of these are called “ancient and indubitable,” but one of them is the right to be armed, and it was not, so far as I could see, an ancient and indubitable right, but they were sure that they wanted it to be an ancient and indubitable right.  And it was restricted in a way that the American right was not: it was restricted to Protestants, who were about 90 percent of the population, simply because Catholics had been ordered by the Pope to overthrow the Protestant monarchy at the first opportunity. 

So there was always a worry: it was okay if a Catholic had guns to protect himself, but if he was amassing weapons, then there was suspicion.  So there were certain liabilities about Catholics, but the Protestants could have arms for their own defense.  Never says anything about a militia.  They could have arms for their defense, suitable to their condition, and as allowed by law.  So it left some room for legislation, but it was an individual right.

I must say that the American scholars looking at this right have tried to read back into it, as a way of dismissing it, the American issue, and so we have Roy Weatherup writing that “the English guarantee that the subjects, which are Protestant, may have arms for their defense” really means Protestant members of the militia may keep and bear arms in accordance with their militia duties for the defense of the realm.  The English never mention militia, but militia is sort of read back by Americans into it. 

By the time of the transplantation to this country of colonies, a lot of the English tradition got copied here, so there was a militia here.  There were obligations to be armed, and sometimes obligations to carry your weapons with you, an obligation to protect yourself and your neighbors.  So to the extent possible, a lot of these old traditions were sort of reinstated in this country.

When the American Revolution occurred, the British right to be armed was one of those rights that they fought for as English subjects.  In England at the time, there were more and more cases and comments that made it very clear that, even though the English right to be armed was limited to Protestants, and as allowed by law, that it actually did affect most individuals. 

Blackstone—the first volume of his famous Commentaries on the Law of England, was published in 1765, 10 years before the American Revolution, and was an instant best seller.  And he referred to the three great and primary rights of personal security, personal liberty, and private property.  And the right for the subjects to have arms was what he listed as one of the auxiliary rights, and in particular, it was a right to be able to protect your other rights if need be, should the government ever tyrannize or take your other liberties away, then the citizens would be able to protect themselves.

Two other quotations that I’d just like to impose upon you—I’ll be very brief—that I think make it clear what that right meant that was inherited by the founders of this country. 

In 1790, the recorder of London, who was the legal advisor for the city of London, was asked his opinion, because there’d been a series of really serious riots.  They’d had about three days of crowds rioting and even breaking into the Parliament building.  So the question was, what were the rights of the subjects to be armed?  Now this is his answer:

“The right of His Majesty’s Protestant subjects to have arms for their own defense, and to use them for lawful purposes, is most clear and undeniable.  It seems, indeed, to be considered by the ancient laws of this kingdom, not only as a right, but as a duty.”  He’s kind of got it reversed.  It was a duty, and then a right, but that was fine.  It was “not only as a right but as a duty.  For all the subjects of the realm who are able to bear arms, are bound to be ready at all times to assist the sheriff and other civil magistrates in the execution of the laws and preservation of the public peace. 

“And that right, which every Protestant most unquestionably possessed individually, may and in many cases must be exercised collectively, is likewise a point I conceive to be most clearly established by the authority of judicial decisions and the ancient acts of Parliament, as well as by reason and common sense.”

A few years later, there were some armed insurrections in 1820, and in a case at that point, Rex v. Dewhurst, the judge actually said specifically, “Are arms suitable to the condition of the people in the ordinary class of life, and are they allowed by law?”  So this was the aspect of the English right that there were questions about whether they are suitable to ordinary people, and are they allowed by law. 

His answer was, “A man has a clear right to arms to protect himself in his house.  A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is traveling, or going for the ordinary purposes of business.”  And as I said, the Americans sort of inherited what was at that time in England a very clear right. 

Finally I would like to cite defense council from this Rex v. Dewhurst case.  He’s talking about the right to assemble, because one of the issues in that case was that people came to an assembly armed, so that there’s a question.  You can have weapons as an individual and carry them for your protection, but do you have a right to come armed? 

And the defense council in this case is referring to the right to assemble, but I think it fits very well the right to be armed, and particularly the American case.

He says, “Gentlemen, many men would suppose it would be better if it had been no part of our constitution.”  I’m sure that there’re a lot of people who feel that it shouldn’t be a part of the American Constitution.  He says, “I can very readily believe that, but our lot has been cast in a land where it has pleased our ancestors for now two centuries to go through a series of struggles and controversies, of danger and of death, for the acquisition of freedom.  Our ancestors were pleased rather to enjoy a condition of perilous freedom than a state of abject tranquility in the condition of slaves.  If, with that glorious condition, there be some qualifications and some deduction, then I say only this.  No institution is perfect, no condition absolute and without it’s faults.  And if there be in the realm of England”—and we can say America—“and the practice of our ancestors, some hazard, difficulty in danger, so I say also is there an inheritance of glory.”  And I’m hoping that the Supreme Court will have the wisdom to affirm that inheritance.  Thank you.

David J. Theroux
President, The Independent Institute

Thank you very much, Joyce.  Our next speaker is Dr. Stephen P. Halbrook.  Dr. Halbrook is a research fellow at the Independent Institute.  He also filed an amicus curiae brief on behalf of 55 members of the Senate, the Senate president, and 250 members of the House of Representatives, before the Supreme Court in the Heller case. 

He received his J.D. from Georgetown University Law School, and Ph.D. in Social Philosophy from Florida State University.  He’s taught Political Philosophy at George Mason University, Howard University, and Tuskegee Institute.  He’s the winner of three cases before the Supreme Court dealing with gun issues, but none on the Second Amendment has come up until, of course, the current one.  He’s also testified before numerous Senate and House committees. 

In addition to his book, The Founders’ Second Amendment, which I mentioned, his many books include That Every Man Be Armed: Evolution of a Constitutional Right; A Right to Bear Arms; The Firearms Law Deskbook; Freedom, the Fourteenth Amendment and the Right to Bear Arms, 1866–1876; State and Federal Bills of Rights and Constitutional Guarantees; and Target Switzerland: Swiss Armed Neutrality in World War II.  His scholarly articles appeared in many, many journals.  His popular articles have appeared in publications like The Wall Street Journal, USA Today, and elsewhere.  He’s appeared on many talk shows.  I’m very pleased to introduce Steve Halbrook.

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Thank you David, it’s a real pleasure to be here.  Having just published the new book, The Founders’ Second Amendment, I have a few acknowledgements I’d like to make. 

First of all, to you, David, for helping to push this book through and to promote it to get a really nice publisher, Ivan Dee, out of Chicago.  It was considered by a number of presses.  We had a lot of vetting of the book. 

We had a lot of readers, some of whom I know who they are, others are anonymous, and one of those I’d like to acknowledge is Professor Joyce Malcolm.  I think I’ve never told you this, but I got better comments from you, Joyce, than from any other person who made comments. 

The comments range, when you do a project like this, from the good, the bad, to the ugly.  And especially on a topic of this type.  You really get varied comments. 

I’d also like to thank my long-suffering wife Brenda, and my daughter Melissa, for their patience in enduring my writing yet another book, which takes a lot of my time.  And at any rate, the book is out. I hope you’ll enjoy it.

I want to say a few words about what’s in the book, and then I’d like to talk about the case before the Supreme Court, and to discuss a major aspect of what each of the nine justices had to say at the oral argument in March. 

A little knowledge is a dangerous thing, and I think that was exhibited in that argument, so if I can bridge the gap between the history and what’s going on today, then I would’ve succeeded in what I’m trying to do tonight. 

The first part of the book is, I think, the most exciting part.  It has to do with the pre-Revolutionary colonial period when the British were tightening the screws and the Patriots were resisting, and you see a spiraling of things, things getting out of hand. 

And our subject—the right to keep and bear arms—really starts in September of 1768.  And at that point, the colonists had basically made clear they would not pay the various taxes that were being imposed upon them without representation.  And the British troops were sailing to Boston, to occupy Boston.

At that time, radical newspapers like The Boston Gazette had anonymous writers like Samuel Adams, John Adams, John Hancock, And one of the papers in early September of 1768 said that the British are coming, and it is said they’re going to be doing things that are worse than anything we’ve endured ever before.  And the very first of the three things they listed was that they would disarm the inhabitants.  They would also take people away who were patriotic and send them to England for trials without juries. 

And the Royalists denied that would take place, but that was the first time a standing army occupied any American city, and it led to conflicts with the population.  And if we started going through the years, we have the Boston Tea Party, and that was just one more stage in this escalation. 

One thing I did a lot of in the book was to find old diaries and letters that were written that have remained obscure since the 1700s.  And one of the diaries I found said that in Boston right before the Tea Party, you couldn’t buy any pistols because they were all bought up.  And so it was basically a situation of the colonists arming themselves, and the British were trying to prevent them from arming. 

And finally, you have the Boston Massacre and the complete escalation of bad relations. But it showed you could get a fair trial in America, because you had John Adams defending the British soldiers, and at the same time, defending the right to keep and bear arms, and actually getting the soldiers acquitted of most charges for shooting a person.  And you had, prosecuting for the Crown, other Patriots.  So it was kind of a strange mix. 

But by 1774, things were getting pretty desperate.  And at that point, General Gage, who was the British commander and also the governor of Massachusetts, was trying to turn the screws and to disarm the colonists in every way possible. 

There was debate in what we could call the city council in Boston, about disarming the people there.  These were counselors that were imposed by the colonists by the British monarchy, they were called the Mandamus Counselors, and they were persons who were not elected by the locals.  And basically they said it would be ideal to disarm the people, but they couldn’t do it. 

So there were other ways to do it.  For one thing, George III imposed a ban on the exportation of arms and ammunition into the colonies, and by the same token, a ban on the importation into the colonies of those things.  So you had the usual cat and mouse smuggling game going on, of which John Hancock was most famous. 

As for the gunpowder supplies that were in the colonies—at that time, because of the volatile nature of black power, you had large quantities being stored in what they called powder magazines or powder rooms, and there’d be a keeper of it.  And General Gage would prevent the keepers of magazines from letting merchants who dealt in things like gunpowder obtain any supplies.  So it was a way of trying to disarm the colonists by not letting them get ammunition.

As events escalated, you had the organization of many colonists into armed associations, and their drilling and forming themselves spontaneously into militias.  You had, for example, the Fairfax County Independent Militia Company that was organized and armed by George Mason and George Washington.  These were not the royal militias that were the official militias the established government. 

You also had—and this took place more in Boston than in any other place, that was a hotbed of radicalism and the most—the strongest what we could call Second Amendment values of that day.  It’s quite different today.  You begin to have quantities of arms and ammunition being taken in and out of Boston. 

At that time Boston had what was called “the Neck,” which was kind of a narrower area—it’s been filled in with and made into land.  But at that time, the British could set up sentries at what was called “the Neck,” and they could stop everybody going in and going out. 

And the colonists in newspaper articles would say things like, well, the British would stop a wagon—they were searching for bullets but they would find printing presses.  So they were the angels.  And the British would say, oh, well, the colonists were taking wagons of what was supposed to be manure for fertilizer, but underneath would be arms and ammunition.  So you had a game being played, and finally you had the British searching persons to see if they were carrying arms, and then seizing them. 

One gentleman had the gall to go see General Gage and say, “I’ve been taking ammunition through there on many occasions, and I’m a merchant, and I want my ammunition that your men have seized.” Gage told him to go file a lawsuit, and, of course, it went nowhere.  He never saw it again. 

And then entrapment was going on.  You had the colonists trying to buy guns from British soldiers, allegedly—the colonists would deny this—but then you also had British soldiers trying to set up colonists and say, hey, kid, want to buy a gun?  And there was one fellow—there were affidavits filed with different versions, but he claimed that they tried to make him buy a gun, and he was finally prevailed upon to buy it, and the soldiers ended up tarring and feathering this gentleman.  And that led to a lot of conflict that that would happen.

Finally, as things escalated out of control, you have the conflict at Lexington and Concord, the shot heard around the world.  And the big story that nobody’s ever heard much about is that after that took place, when the British retreated to Boston, General Gage basically was holding the people of Boston hostage.  Things were scarce.  It was hard to get food.  They were subject to oppression by British soldiers.  So everybody wanted to leave Boston.  And Gage said that if you would only turn over your guns to the selectmen of Boston, your elected representatives, for you safe keeping, then you can get a pass to leave town. 

So they took all their guns by agreement to Faneuil Hall—some of you have been there as tourists, it still stands today.  It’s a beautiful building—that’s where they had their public assemblies.  And the selectmen carefully took their names and recorded the type of gun and all that for safekeeping, and then at the end of the day, here come the lobsterbacks who surround the building and seize all the guns. 

And that led to quite a reaction in the colonies, because by that summer of 1775, the Continental Congress passed a declaration of causes of taking up arms and cited that the seizure of arms in Boston as one of the causes of basically turning to this revolutionary war.  And by the way, once the people had turned their guns in, then Gage wouldn’t issue them the passes to leave.  And so that was considered adding insult to injury. 

And after that point, things got out of hand, and then we’re fighting a war, so there was less talk about rights and violations of rights, and — if you look at the newspapers of the day, for example—more articles about battles and conflicts and all that. 

But by 1776, right when the Declaration of Independence is being formulated, the states independently, on their own, began to have their own conventions and to form state constitutions, and some of them formed bills of rights.  And there were a couple of states that passed bill of rights guarantees of the right of the people to bear arms for defense of themselves and the state.  There were a couple of other states which had specific, limited objectives in their declaration of the right to bear arms, and I’ll say more about that in a minute. 

So then we go through a period of constitution building at the state level, and finally we reach the end of the Revolutionary War, and we have the Constitutional Convention in Philadelphia, proposing a federal constitution, which immediately led to outrage by what became known as the Anti-Federalists because it had no bill of rights.

We enter into three phases of the ratification dispute on the Constitution.  In the first phase, the adherence of a bill of rights could get nowhere.  There were Federalist majorities in each convention, getting the Constitution ramrodded through with no call for amendments. 

But in the Massachusetts Constitutional Convection, Samuel Adams proposed a bill of rights about free speech, and the right of peaceful citizens to keep their own arms.  In Pennsylvania, the Constitution passed without any recommendations for amendments, but the so-called dissent of minority wanted to guarantee a bill of rights including the right to bear arms, for self defense, for hunting, for defense of the state, and for national defense. 

Finally, at the end of that period, New Hampshire was the first state to successfully adopt the Constitution and ask for a bill of rights including a guarantee of the personal right to keep and bear arms.

The next phase of that debate, the proponents of a bill of rights got the upper hand, and that was the Virginia Constitutional Convention in 1788.  If you go back and read those debates, everything the Anti-Federalists predicted about what would happen with the Constitution not only came true, but was worse than they could ever have imagined. 

But they did stick with it, they did succeed in reaching a compromise with the Federalists in adopting the Constitution, but then proposing a bill of rights, a declaration of rights, and with the commitment by James Madison in particular, that when the first federal congress would meet, that a bill of rights would be put on the agenda.  And that was a watershed moment, when that compromise was reached.

So then we come to the third phase of the ratification of the Constitution, and at that point, we have North Carolina and Rhode Island and some other states basically saying that we’re not even going to adopt a constitution until a bill of rights gets proposed. 

That leads us to June 8, 1789, when James Madison stood up in the first House of Representatives and proposed a declaration of rights, including what became the Second Amendment.  We have the published commentary about the meaning of it by Tench Coxe, a famous Federalist, who said that to prevent tyranny and so that a standing army doesn’t oppress the people, the people would be guaranteed the right to keep and bear their private arms. 

Then we go through a period in which the Bill of Rights gets proposed by the Congress and then adopted by the states. Finally, by 1791, that had taken place, and in that same year, Congress debated a militia act, and you have the enactment of the Militia Act of 1792, in which every able-bodied white male citizen was required to provide his own arms and to enroll in a militia. 

That’s getting toward the end of the book, but we take it through the period in which the founders passed away.  I have some personal things about the founders in that chapter.  They were big gun collectors. Thomas Jefferson goes to Paris and to London and he goes on shopping sprees for fine guns, fine wines, and fine books, and he basically was a collector of those things and brought them back. 

All of the founders had guns.  It’s rather disingenuous—some of the amicus briefs that were found in this Heller case in the D.C. matter argued that the founders were afraid of guns, and they were afraid of the people having guns, and they basically created a fantasy world that was completely adverse to life in those days. 

The conclusion of the book is, what does the Second Amendment say?  And there, I do a linguistic analysis of each phrase in the Second Amendment.  And I’d like to bridge that point, summarizing what the book is about to the Supreme Court argument, because that was the first question asked in the Supreme Court argument.  What does the Second Amendment say?  What are the actual words?  “The right of the people to keep and bear arms shall not be infringed.”  The so-called collective rights feud that Professor Malcolm mentioned contends that either — in the old view —states have a power to maintain militias, or, in the more sophisticated collective rights view, that individuals have a right to bear arms in a militia. 

Chief Justice Roberts asked the first question in the oral argument, and this was in March.  And he said, isn’t kind of odd that if the amendment means that the states can maintain militias that it refers to the right of the people?  Hello, right of the people?  The people?  Not militia, and the word right, not power?  Governments have powers, people have rights. 

The First Amendment talked about the right of the people peaceably to assemble.  The Second Amendment, the right of the people to keep and bear arms.  The Fourth Amendment, the right of the people against unreasonable search and seizure.  And the Tenth Amendment refers to powers of the federal government and of the states, powers not delegated to the feds or reserved to the states respectively.  Or to the people, the people can have powers also. 

But in every instance, the people are the only entity with rights, so it’d be strange if the founders meant to say, the states have a power to maintain militias when they actually said that people have a right to keep and bear arms.  And it’s also strange to say that there’s an individual right to bear arms in a militia when there is no right to even be in a militia or to do anything you want to when you’re in that military unit because they tell you what to do.  Your commanding officers tell you what to do.  And if you say, “I want to bear a Smith & Wesson revolver,” and they say, “You’re going to peel potatoes,” then you get court marshaled if you don’t do what they say.

This is so superficial.  One thing that’s always been striking to me about the collective rights view is that those who make that argument are not exactly adherents of state powers.  If you think about those who advocate gun bans and who say the Second Amendment doesn’t mean anything—they are very unlikely to be saying that we’ve got to protect state powers over the militia against the federal government.

One of my favorite things that was said in the oral argument was by Justice Stevens.  There’s no question he’s going to vote for the collective rights view of the amendment.  He asked a question to counsel for Heller: “Isn’t it true that only two of the original states had provisions guaranteeing the rights to bear arms that were individual in character?”  And all the rest were collective.  Only two that way, all the rest were collective.  Well, guess what?  There were only two others that even mentioned the right to bear arms, and let’s look at what they said. 

Pennsylvania and Vermont talked about the right to bear arms in defense of themselves and the state—clearly individual, although there are those who argue that when they said themselves, that really meant some kind of collective body.  It’s like they meant to say, “the right to bear arms in defense of the state and the state.”  North Carolina adopted a provision recognizing the right of the people peaceable to assemble and then the right of the people to bear arms in defense of the state. 

So even though there was the defense-of-the-state objective—which was quite radical, by the way, I mean, we’re talking about defense of the state against the constituted royal government—the right still remained in the people.  And then the fourth state to mention this right added “to keep” and not just to have it bear arms, and that was Massachusetts, which recognized the right of the people to keep and bear arms for the common defense.  Even though that right for the common defense was mentioned, that did not mean that you couldn’t keep arms for whatever purpose, because if you kept them even just for the common defense, you would still have a right to keep them.  So it would not require authorization by government to do that.  In fact, it was meant to make clear that the state government—because that was the only government in existence at that point —would not have the power to interfere with the right, to take that right away.  It was protection from the state by—on behalf of individuals.

I was sitting in the oral argument with some friends in the counsel section, and everybody knows that to win a case—a controversial case in the Supreme Court —you’ve got to have Justice Kennedy’s vote, right?  So we’re sitting there, and Kennedy starts to speak, and everybody’s hanging on the edge of their seat, and he asked this of counsel for D.C., Walter Dellinger:  “Isn’t it true that the founders were settlers and they needed firearms to protect themselves from criminals, hostile Indians, and grizzly bears?”  And we all breathed a sigh of relief—Kennedy at least believes in the individual rights side of this equation, even though there were no grizzly bears in the East.  He doesn’t know that, but he repeated that comment two or three times, but we still liked it very much because it shows that he agreed with individual rights interpretation of the Second Amendment.

Justice Souter—and I’m not going to predict how all the justices are going to vote, but he will vote for the collective rights view.  He quarreled with the issue of what is the meaning of bear arms?  And he said nobody talked like that back then.  To say to bear arms for hunting and to bear arms for self defense.  Bear arms meant purely a militia context, and that was argued in the one of the amicus briefs. 

And there was a statement that we did some kind of word search in the old Congressional Record and we found that a gazillion times when the word term “bear arms” was used, it meant militia service.  But the one thing that that survey did not do is to look at when you had the words “the right of the people to bear arms,” was that a militia context?  And the answer is no.  Whenever you see the term “the right of the people” referred to and then the term “bear arms,” it’s always a context of individual as it literally states. 

And as far as people not talking like that, yeah, they did.  The dissented minority from Pennsylvania, as I mentioned earlier, referred to the right of the people to bear arms for self-defense, for defense of the commonwealth, for hunting, and for national defense.

Thomas Jefferson proposed and James Madison introduced a bill in the Virginia legislature referring to bearing a gun in a hunting season context.  So the term “bear arms” does get mentioned in the sense of simply meaning to carry a gun, something that, by the way, Justice Ginsburg recognized in an opinion a few years back. 

So people did talk like that then.  The term “bear arms” simply means to carry arms.  And when you interpose the term “keep”—and in fact, Justice Souter asked, well why do you need both keeping and bearing arms?  It’s like quarreling with James Madison.  Why did you say both of those terms when you only need one?  Well, it has both of them, and “to keep arms” means to possess them, “to bear arms” means to carry them.  It’s very simple.

The next person I want to mention is Justice Scalia.  He’s always a treat. They broadcast the oral argument—how many of you actually listened to it?  Probably a good number of you.  Justice Scalia tells a lot of jokes, and what I’m going to mention his statement on this issue is not a joke or anything, but he made the point that the framers were concerned with the government taking individuals’ guns away.  How much was said about disarming militias?  Very little.  They were concerned with people, individuals being disarmed.  And Justice Scalia also referred to the fact that in English history, Catholics were disarmed and Scots were disarmed, and that that was very well known to the framers. 

And the actual fact was that when there was a Catholic monarch, they would disarm Protestants, as was complained about in the Declaration of Rights in 1789, and then when the Protestants took over, they would recognize a right to have arms for their own defense without mentioning the term “the people.”  The English Declaration of Rights refers to the right of Protestants to be armed.  So you have kind of religious persecution.

By the way, I litigated a challenge to the D.C. law that was going about the same time as this case that actually made it to Supreme Court, and the adherence of collective rights views argued that firearm prohibitions are perfectly acceptable.  You find them in American history.  Maryland banned possession of guns at one point by Catholics.  They might as well have said, well, yeah, they banned possession of arms by African Americans, as well. 

But in any case, the reference that Scalia made to the banning of arms possessed by Scots referred what was called the Highlander Acts of the 1700s, where it was permissible and authorized by a British soldier to shoot on sight a Scotsman dressed in the traditional attire, because that traditional attire would include a sword, and those of you who’ve been to the Scottish festivals, you know there’s a dagger in the ankle.  And that’s the Scottish attire, and if you saw somebody like that, then you could shoot them for being armed.  So those were comments made by Scalia.  In his book, A Matter of Interpretation, he explicitly endorses the individual rights view, so I think it’s safe to say where his vote will be in this case.

Justice Breyer is another story.  Back about a year and half ago, he debated Justice Scalia on how they interpret the Constitution, and Scalia said, I try to figure out what the framers intended, and Breyer said, I try to give reasons for my conclusion.  And Breyer said, well what about all this crime?  Doesn’t that justify banning guns?  So he didn’t really have anything to say about the Second Amendment per se, but it was a policy argument, and Scalia said that, yeah, that proves why people in D.C. need guns.

Justice Thomas, as usual, didn’t say anything, but in Prince v. U.S., in his concurring opinion, he seemingly endorses the individual rights view, and he endorsed Joyce Malcolm’s book, To Keep and Bear Arms, and my book, That Every Man Be Armed.  So we were pleased with that. 

Justice Ginsburg is hard to predict on this issue because she said things that could go either way, but she did ask the D.C. counsel, “Are you telling us that the Second Amendment doesn’t mean anything today?”  And basically, the answer was yes.  The response was that unless the federal government violated some state power over a militia right, the Second Amendment doesn’t do anything anymore.

And then we come to Justice Alito, the last of the nine.  The Second Amendment begins with a prefatory clause: “A well regulated militia being necessary to the security of a free state.”  And it was D.C.’s argument that that completely swallows up the right to keep and bear arms, and Alito said, well, wait a minute.  The Constitution already had a militia clause, dividing powers between the feds and the states, and what does this add to that?  Nothing. 

So the militia clause of the Second Amendment is really a declaration of political principle that doesn’t do anything to shift powers between the states and the federal government, but it was a declaration that, when you take the entire amendment in context, by having the right of the people to keep and bear arms recognized, then you can certainly have a well-regulated militia, and that will contribute the defense of a free state.

And I’m glancing at my watch, and I think it’s probably about that time, so thank you very much, and I’ll turn it back over to David.

David J. Theroux
President, The Independent Institute

Thank you very much, Steve.  So I’d like to open it up for questions from the audience.  If you’d wait for the microphone, Gabriel has that, we’ll start in the back.  And please keep it to a question, and indicate whom you’re addressing your question to.

Audience Member

Either of the speakers—I guess my question is, do you have a sense of what happened in the post-World War II America that created this opposition to the Second Amendment as an individual right?  Is it just some sort of socialistic idea that there is a better way to control crime?  For 200 years, this didn’t seem to be a concern until all of a sudden or since World War II.  Do either of you have an opinion on what happened in the body politic that makes this such an issue?

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

 I’ve got an answer, I bet Joyce has one, too.  It really didn’t start until the ‘60s, that’s when the collective rights view gained currency, and that’s when you started to have otherwise respectable law professors and judges saying things like the right of the people to keep and bear arms does not mean the people have a right to keep and bear arms. 

And we had political violence in this country.  We had the assassinations that we’re all familiar with.  And we had some kind of view that this was a great panacea.  You could have federal restrictions on guns, you could ban handguns, you could do things like that, and somehow crime would go away. 

And you have the creation of a viewpoint that if you take the Second Amendment literally, then you’re some kind of quack.  And you have the majority of the legal profession stampeding into this view that it means nothing, something they would never have done on any other bill of rights issue. 

Some of us worked hard in the 1970s and ‘80s, publishing law review articles, and I don’t know how far we got until so-called liberal law professors began to endorse our views.  Sandy Levinson’s article, “The Embarrassing Second Amendment,” was a real turning point in that.  And now you can read in the New York Times that it’s respectable to believe that the Second Amendment means what it says.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

Yes, I’d just like to say, I agree.  I think it was the violence in the 1960s, riots and assassinations that made people think this was such a perfectly easy way to control crime, just take the guns off the streets, and so they began to devise ways in which to interpret the Second Amendment that would enable them to do that.

David J. Theroux
President, The Independent Institute

Gabriel, how about the gentleman against the wall there, he had his hand up first.

Audience Member

Yes, I’d like to direct this question to Steve.  I know you mentioned the British taking away the guns from the colonists, but I was wondering about these school shootings, whether you think it’s possible a covert force of a hostile foreign country might be behind these school shootings. 

For example, Cho.  I heard he had no military or law enforcement training, but he killed 32 people without being stopped.  That’d be easier to do in a conspiracy.  And you have Beslin in Russia.  Do you think it’s possible it could be a conspiracy?  Has anybody done any correlation between the various school shootings to determine the possibility of this?

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, I would attribute the school shootings to the Gun-Free School Zone policy ensuring that no law-abiding people will have arms to protect themselves and their fellows with, bans on guns even by persons who have concealed weapons permits, bans on guns by professors or people in authority even, and just an attitude of non-resistance which is taught. 

There’s in the society a culture of “You do not resist force.  You do what they want.  You run.”  It’s a mentality.  “You don’t rush an assailant.”  Maybe there’s more to it than that, but that’s what has transpired in my mind, that it’s a panacea of thinking you’re going to ban guns from a campus.  A person who disobeys laws against murder is really going to take seriously these no-gun school zone signs, and the whole idea of nonresistance?

Joyce Lee Malcolm
Legal historian: George Mason University; Author: To Keep and Bear Arms

A school shooting did result in clamping down in Britain, of course, with the Dunblane massacre.  A man came in and shot children and their teachers in a first grade class in Scotland, and immediately after that, there was a very emotional campaign in the media to ban all handguns, and led by some of the parents. 

And they were so successful in getting all handguns banned that even attempts to have amendments to permit handicapped target shooters to have weapons failed because every handgun was to be taken away.  And so in 1997, I guess it was, all the handguns that were out there registered were confiscated, and within five years, handgun crime doubled.  But that was their approach, and they’ve been shocked that we have a shooting in a school and we don’t take the same approach.

David J. Theroux
President, The Independent Institute

We’ll try one over here, and we’ll go back over on here.  So this gentleman here.

Audience Member

I have a question for Dr. Malcolm.  I read this week in the L.A. Times that there is a growing movement to openly carry handguns in public across the United States.  I was wondering if your research of the English right or duty was the right or duty to sneak around concealing the guns, or was it sort of normal to openly carry them?

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

That was a good question.  I think they were generally openly carried.  There was a worry that a concealed weapon was concealed because you might have some nefarious purpose, so one of the early laws that restricted guns—long guns—restricted them so that it was okay to have a gun that had a barrel a yard long.  Anything shorter you might have hidden in a cloak and used in highway robbery.  So I think that they would just openly carry.

David J. Theroux
President, The Independent Institute

The gentleman right here, Gabriel.

Audience Member

Thank you for both the speakers.  Let’s return to the issue of why elected officials and scholars might argue against concealed carry or open carry or even self-defense with firearms.  Speak please to the issue that perhaps the officials think it’s easier to attack gun possession and firearm laws than it is to actually attack criminals, and do something about criminals, rather than taking away guns, because perhaps guns don’t vote—it’s more of a social issue.

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, you know, it’s an elitist attitude that goes with social engineering, that those who think they know everything basically set the rules for those they want to be like clay and to mold them.  And so if you have people who don’t have means of resistance, they pay all the taxes because they can’t resist that, and they do whatever you tell them.  And they see basically common people as a rabble.  They don’t trust them with arms.

And this goes back to the traditions in Europe, for example.  James Madison wrote that the monarchies in Europe were afraid to trust the people with arms, and that America was quite different, and the people would be able to overcome an oppressive standing army.  So I think it’s part of the attitude of a quick solution.  You just pass a law.  You don’t have to change, you don’t have to solve poverty or what breeds crime and all of that.  All you have to do is pass the law, disarm law-abiding people, and then you can say you’ve done something.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

I think there really has become this tradition that you have to leave it to the professionals, that ordinary people would have a gun taken from them, they’re in more danger if they try to protect themselves, so the professionals will know how to handle it.  Of course, they can’t be everywhere, but that doesn’t matter. 

And particularly in Britain, they even started this “walk on by.”  If you see crime being committed, you’re to walk on by, and maybe call the police.  And at one point, a few years ago, the BBC, when they were having another one of their crime waves and gun crime waves, issued a series of instructions of what the average person was allowed to do.

And one of the things I thought was quite interesting—you were not to call help, you were supposed to yell, call the police because no one was supposed to help you, you see, except the police.  And then if you were able to knock your assailant, you were not to do any more than that, because if you harmed him, then you would get arrested for assault. 

So they just want this passive public.  It seems to me they must realize the police can’t be everywhere at all times, and the ironic thing about the D.C. case is, of course, that the mayor’s claiming they can’t stand by and let people die, but, of course it was D.C. that had this landmark case where the police were proven not to be responsible for protecting any one individual.

So there’s your collective right.  Everybody’s protected, but no one individual is protected by the police.  So it’s a whole attitude I think.

David J. Theroux
President, The Independent Institute

We have a gentleman right here.

Audience Member

Some constitutional commentators have said as a textual analysis, the drafters’ purpose and intent are not useful to understand what the meaning of the text is, and that instead, it should be the meaning of the words when they were written to a normal lay person. 

You’ve said what the drafters were kind of thinking, but is that also the common understanding?  You mentioned the state constitutions but also how those state constitutions were interpreted—were the things written then—were people—did people know exactly what they were getting into?  Did they know what those state constitutional amendments meant to be able to apply them to the federal constitution and say that’s what we want, and that’s what we want more of?

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

One of my favorite statements about a bill of rights was by St. George Tucker and his Blackstone’s commentaries published in 1803.  He said that a bill of rights is not just for the government, it’s also for the person of the meanest disposition or education, meaning the ordinary person to understand, and to enforce those rights if they’re violated.  So it would be a rather strange Bill of Rights if the sole persons to interpret it were the ones who were also the ones who’ll be violating it. 

And so, he said that, basically, it’s for the ordinary person to learn about, to educate themselves about, and to know when their rights are violated so they can do something about it.  And in line with that, what do you do about it?  We have free speech; we have suffrage and things like that.  And in the ultimate analysis, we have an armed populace that acts as a dissuasive factor from too much oppression and tyranny.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

In one opinion of Justice Marshall’s, he talks about how to interpret the Constitution, and says it should be interpreted according to the simple meaning of the language.  So I think people were very feisty about what individual rights were.  I think they had a kind of keen understanding.

David J. Theroux
President, The Independent Institute

This gentleman right there.

Audience Member

I’ve seen a writer on Book TV who argues that there were lots of local laws against firearms.  And I can think of one example that we know from the old West, and that was Wyatt Earp’s putting, in the various towns he was in charge of, putting a ban on carrying your guns in the town limits.  What sort of law could the D.C. city council pass that would still have us disarmed, even if the Supreme Court decision were to come out the way we hope?

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Do you want to go first?

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

Oh, all right.  I think that what they could do is allow people to have guns in their own homes.  I mean, they could still control carriage on the street, but to just get to that core right of people being able to protect themselves.  So if they simply allowed people to be able to have a weapon in their own home, and use it for their own defense, that seems to me something that they could do, and then still try to control what happens out on the street is a separate issue.

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

What I would say is, probably what they will do if the Supreme Court rules not only that it’s an individual right, but that the hand-gun ban is invalid—and I’m sure they’re doing this now—they’re drafting regulations to try to make it very onerous to have guns. 

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

That’s a good point.

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

It’s already very difficult to have any kind of firearm in the District of Columbia.  It’s got to be registered.  They have a weird definition in which they define most semi-automatic firearms as machine guns, which cannot be registered.  So even if the handgun ban is invalidated, you could only own a revolver.  You could not own a semi-automatic pistol, at least according to that other definition, which didn’t get litigated.

And so, sitting in Mayor Fenty’s shoes, and knowing the way they think, I believe they probably have already anticipated what could happen, and they’re going to make it as hard as they can on you. 

There’re already provisions in the D.C. code now, things like you’ve got to be a person that the police chief deems you can have a gun and use firearms competently and safely.  You could imagine a person who’s handicapped who maybe wants to collect guns but does not shoot them, because they have one arm, and they want to have a collection of rifles, for example. 

So you’ve already got some potential for mischief there, and I don’t doubt at all that, as we speak, they’re drafting provisions to make it onerous.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

Very depressing thought.

Audience Member

Could you identify the militias that are referred to in the amendment?  Are these militias state, local, or county?  And who belongs to them?

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, at the time of the founding, the militias were simply the people who would turn out to defend from danger from whatever source, and in the case of the Revolution, it was the Brits.  It was the official government.  It might be foreign invasion.  It might be some kind of domestic tyranny. 

There was, of course, the federal Militia Act that I mentioned—all able-bodied white male citizens—the word white was taken out after the Civil War.  All of the states at the time of the founding had militia acts which required enrollment in a militia. 

It was basically a situation of you live here, you’ve going to be required to help defend the society.  And it was considered to be because you had all the ordinary people in it—a way to prevent a standing army from arising and oppressing people.  But these militias in the revolutionary context sprang up spontaneously, and there came a time when many of them were organized under state laws, but when the Second Amendment refers to a well-regulated militia, it doesn’t mean what we mean by regulations today, it means a disciplined militia, a body of people who can get together and defend themselves and their society—which might mean people who know how to shoot straight safely and how to act together.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

They also had age limits.  There were certain age definitions.  Originally, it was something like 16 to 65, and then they changed it to 18 to 45, and it wasn’t voluntary.  The original militia under the British, or even under the American Republic, it was—you were obliged, if you were able-bodied, to be a part of the militia.  So it wasn’t a voluntary association. 

During the war, and before that, the minutemen were voluntary, but the government’s militia was not voluntary.  You had an obligation to be in it.

Audience Member

Should there be a line drawn where individuals can or cannot possess certain arms, anywhere from single-automatic to fully-automatic to even high explosives, and even to the militia?  Is it appropriate for militias to own warheads in this day in age?

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

Go ahead, if you want.

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, first of all, in this case before the Supreme Court, D.C. and also the United States take the position that, well, you shouldn’t invalidate this handgun ban or there might be arguments that they can legally possess all those things you mentioned.  Just to get this straight at the beginning, the only issue before the court is handguns, and the court made that quite plain in the oral argument.

Now the Second Amendment itself, if you look at it textually, refers to the right to keep and bear arms.  So I think there’re some limits there in terms of what arms would ordinary people keep in their homes, and what could they bear. 

So you cannot bear heavy weapons.  You cannot bear artillery.  You can certainly bear rifles, pistols, and shotguns.  If we want to talk about the outer limits of that, machine guns and other things like that, there’s really never been any debate on that in the scholarship.  The Supreme Court in the 1939 Miller case sets a militia-type test for that, leading to the argument that one could possess a machine gun under the Second Amendment. 

Now, in this country you may not know this, but under federal law you can legally own machine guns.  You can legally own artillery.  They just have to be registered with the ATF.  So we don’t have a complete ban on that kind of weaponry, although some states might. 

Now at the time of the founding, some individuals owned cannons, and certainly militia units had cannons.  And there’s still in existence the Right and Honorable Militia Company in Boston.  It’s an artillery company that was a company under the auspices of the state government, but they owned their own artillery at one time.  They probably don’t now. 

So the way that I see this debate at this point is about whether you can have what everybody recognizes to be ordinary arms, the same kind of ordinary arms that law-abiding people have always kept.  And, yes, it’s certainly theoretically interesting to argue about other kinds of implements and weapons.  But the real debate in this country is over ordinary firearms.

David J. Theroux
President, The Independent Institute

Did you have a question?  Gentleman here?

Audience Member

As I read the Second Amendment, it explicitly refers to, as you know, a well-regulated militia necessary to the security of a free state, state meaning like Virginia or Massachusetts, etc.  Security against what?  Security against foreign invasion, and at that time, security against the danger of terrorism by the federal government itself.  There was that concern at that time. 

So looking at the Second Amendment as worded, it seems to me that today, a well-regulated militia is something that the founders never envisioned, namely the National Guard.  And all the guns used in the National Guard are provided by government itself.  So where does that leave the Second Amendment? 

In my view, applied through the D.C. gun law, the D.C. gun law is not unconstitutional, but very unreasonable.  So why haven’t the speakers tonight mentioned the National Guard as being, so far as I can see, the only example of a well-regulated militia necessary to the security of a free state?  Thank you.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

That’s a good question.  The militia was supposed to be independent, and it’s now officially a part of the Army.  The whole idea that it would protect people against tyranny in the government makes no sense if the militia is now under the control of the U.S. Army and the federal government. 

And the Second Amendment would be just an artifact if the main clause didn’t say the right of the people to keep and bear arms.  So it’s not the right of the militia to keep and bear arms. 

I think, as Steve Halbrook mentioned, the comment about the militia being the proper security of a free state is really a declaration in favor of a militia.  People were very afraid of a standing army, and so I think that it was a way of saying, well, it’s the militia that really we want to be protected by. 

And there was some concern during the convention and actual amendments that in order to have a standing army, you would have to have two-thirds vote of each House of Congress or even three-fourths vote, they were so worried but it was mentioned that —

(break in tape)

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

—in the first draft by James Madison of the Second Amendment, he refers to a free country.  So the idea was to preserve and secure a free country, a free political society.  And for what purposes?  Well, the text of the Constitution refers to the suppression of insurrections, repelling foreign invasions, and enforcing the law if there was a breakdown such that the militia had to be called on for that purpose. 

So there were federal aspects where, basically, the feds could induct the militia in the federal service.  But the National Guard is kind of the hybrid.  It’s considered the militias of the states when it’s in the state service, but when it’s in federal service, it’s part of the U.S. Armed Forces, and not militia.  And the Supreme Court made that decision in U.S. v. Perpich, basically upholding the sending of the National Guard units abroad in the Central American conflict back in the ‘80s. 

So the term “militia” to the founders meant basically all able-bodied male citizens.  I think today, it would be considered all able-bodied citizens without regard to gender.  But to secure a free state, to have this well-regulated militia, and to try to de-emphasize standing armies, that was a local principle.  The founders wouldn’t say something like “duck hunting being lots of fun, the people have a right to keep and bear arms.”  They said it with the important federal objective of promoting a militia, and the only way that could be done was to recognize was to recognize the right of the people to keep and bear arms.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

Can I just add one thing? I thought one of the interesting notes in the appeal in Heller was that the D.C. claim that since they weren’t a state, the Second Amendment didn’t apply to them.

Audience Member

Thank you.  Now that we’ve gotten into this term of state, it seems to me that there no were states at the time of their writing of the Second Amendment.  There were plenty of colonies, but did they think of the state as a geo-political unit or perhaps the state as a state of being, or a state of freedom.  A free state?

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, you know the Declaration of Independence refers to free and independent states, and they were virtually independent of each other.  When the Constitution gets adopted, they have stronger federal ties.  So when the Second Amendment was proposed and ratified, obviously, they were already states, and it was states that were ratifying the Second Amendment.

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

Yeah, I think that they were using “state” as a polity, so that the district would be included. 

David J. Theroux
President, The Independent Institute

Any of other questions?  Gentleman right there.

Audience Member

Back in colonial days, there used to be laws that said you had to go to church with arms or you were fined.  What happened to those?  When did they fade away?

Joyce Lee Malcolm
Legal historian:  George Mason University; Author: To Keep and Bear Arms

That’s a good question.

Stephen P. Halbrook
Research Fellow, the Independent Institute; Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

When they were no longer being attacked by hostile Indians.

David J. Theroux
President, The Independent Institute

Okay, well, I want to thank you all for joining with us.  If you’d give a round of applause for our speakers. 

And thank you for joining with us and making this such a great event.  Dr. Halbrook’s book is available for those who are interested downstairs.  It’s at a special discount, only for this event, and I’m sure he’d be delighted to autograph copies. 

I hope that you’ll join with us for future events, and perhaps you can become members of the institute for future discounts and so forth.  We’re delighted you could join with us.  Thank you, and good night.

END OF FORUM



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