Chapter 1
The History of the Right to Bear Arms

AN EARLY PRECEDENT: MILITIAS AND THE OWNERSHIP OF WEAPONS
EARLY GUN CONTROL LAWS
THE ENGLISH BILL OF RIGHTS
THE AMERICAN MILITIA AND THE RIGHT TO BEAR ARMS
THE U.S. CONSTITUTION, THE RIGHT TO BEAR ARMS, AND THE MILITIA
THE MODERN DEBATE

The right to bear arms has long been an American tradition. From the time colonists settled on North American soil, Americans have held weapons to protect themselves. Armed citizen-soldiers won America's freedom from English rule more than two centuries ago. Partly because of this long-standing tradition, attempts to restrict a citizen's right to own a gun evoke strong emotions.

The modern debate over gun control erupted after a series of high-profile assassinations in the 1960s and gained new urgency after gun-related violence rose in the 1980s and 1990s. After the 1999 massacre at Columbine High School in Colorado there were renewed calls for Congress to pass stronger gun control laws. In 2007 a mentally ill South Korean student shot thirty-two people and then himself at Virginia Polytechnic Institute and State University. Shootings such as these keep the issue of gun control in the forefront of the collective American mind.

At the heart of the gun control debate is the interpretation of the Second Amendment to the U.S. Constitution. One side claims that gun ownership is an individual right guaranteed by the Second Amendment and that guns are vital for self-protection. The other side believes guns should be banned or restricted because many innocent lives are lost because of their misuse. Gun control advocates say there is no longer a compelling need for people to “keep and bear arms” as there was when the Constitution was ratified in 1791. They sometimes add the argument that the constitutionally guaranteed right was never meant to apply to individuals.

The right of the individual to keep and use weapons has a long tradition in Western civilization. The Greek philosopher Aristotle (384–322 B.C.) wrote in Politics that ownership of weapons was necessary for true citizenship and participation in the political system. By contrast, another Greek philosopher, Plato (428–348 B.C.), wrote in the Republic that he believed in a monarchy with few liberties and saw the disarming of the populace as essential to the maintenance of an orderly and autocratic system. The Roman politician Marcus Tullius Cicero (106–43 B.C.) wrote in De Officiis of his support of bearing arms for self-defense of the individual and for public defense against tyranny. The Italian political philosopher Niccolò Machiavelli (1469–1527) advocated in Discourse an armed populace of citizen-soldiers to keep headstrong rulers in line.

AN EARLY PRECEDENT: MILITIAS AND THE OWNERSHIP OF WEAPONS

One of the first documents to link the bearing of arms with a militia (an army composed of citizens called to action in time of emergency) was the English Assize of Arms of 1181, which directed every free man to have access to weaponry. Henry II of England (1133–1189) signed this law to enable the rapid creation of a militia when needed, but the law also permitted carrying arms in self-defense and forbade the use of arms only when the intention was to “terrify the King's subjects.” In 1328, under the reign of King Edward III (1312–1377), Parliament enacted the Statute of Northampton, which prohibited the carrying of arms in public places but did not overrule the right to carry arms in self-defense.

EARLY GUN CONTROL LAWS

The seventeenth century was a period of great turmoil in England as Parliament and the monarchy struggled for control of the government. When a series of civil wars erupted in 1642, a critical issue was whether the king or Parliament had the right to control the militia. When the wars ended in 1660, England fell briefly under the control of a military government, which authorized its officers to search for and seize all arms owned by Catholics or any other person deemed dangerous. The Game Act of 1671, the first recorded example of a gun control law, was enacted to keep the ownership of hunting lands and weaponry in the

hands of the wealthy and to restrict hunting and gun ownership among the peasants. People without an annual income of at least forty to one hundred pounds could no longer legally keep weapons, even for self-defense.

THE ENGLISH BILL OF RIGHTS

In 1660 the English monarchy was restored with the coronation of Charles II (1630–1685), but the battle between Parliament and the monarchy continued. King James II (1633–1701) was deposed in 1688, and the following year his daughter, Mary (Queen Mary II, 1662–1694), and her husband, William (King William III, 1650–1702), were installed as co-rulers of England. When the pair took their oaths of office, they were presented with a new Bill of Rights http://www.yale.edu/lawweb/avalon/england.htm), which outlined the relationship of Parliament and the monarchy to the people. This Bill of Rights included a specific right of “Protestants [to] arms for their defence suitable to their conditions and as allowed by law.” It also condemned abuses committed by standing armies (armies maintained by the government on a long-term basis, even while at peace) and declared “that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.” The Bill of Rights removed the word guns from the list of items the poor were forbidden to own by the Game Act of 1671. From this time on, the right to keep and bear arms belonged to all Englishmen, whether rich or poor.

THE AMERICAN MILITIA AND THE RIGHT TO BEAR ARMS

Much of U.S. law is rooted in the system of laws developed in England (called common law) because most American colonists came from England, bringing with them English values, traditions, and legal concepts. Many of the English were familiar with the famous judge Sir William Blackstone (1723–1780), who listed in his Commentaries http://press-pubs.uchicago.edu/founders/documents/v1ch16s5.html) the “right of having and using arms for self-preservation and defense.” This right, brought to North America by the English, was exercised by the colonists against the English during the Revolutionary War and was later incorporated into the U.S. Constitution.

In the middle of the eighteenth century, an increasing British military presence in the colonies alerted colonists to the danger of a standing army. When British soldiers shot and killed five men on the streets of Boston in 1770, an event that became known as the Boston Massacre, colonists grew further concerned. The Boston Massacre became a milestone on the road to the Revolutionary War. In 1775 the British army encountered the Massachusetts militia at Lexington—“the shot heard around the world”—and the ensuing seizure of colonial arms and munitions convinced other colonies that a militia was necessary to achieve the “security of a free state.”

Because the individual colonies did not have enough money to purchase weapons, each man was required to maintain a firearm so he could report immediately for duty and form a militia. It was taken for granted by the colonists that the right to individually possess and bear arms was inseparable from the right to form a militia—without these privileges, the right to organize a militia would have little meaning. Thomas Jefferson (1743–1826) stated, “No freeman shall be debarred the use of arms (within his own lands or tenements),” and Richard Henry Lee observed that “to preserve liberty, it is essential that the whole body of the people always possess arms.”

In The Federalist, No. 29 (http://www.constitution.org/fed/federa29.htm), one of a series of papers written after the Revolutionary War to convince the colonists to ratify the Constitution, Alexander Hamilton (1755?–1804) spoke of the right to bear arms in the sense of an unorganized militia, which consisted of the “people at large.” He suggested that this militia could mobilize against a standing army if the army usurped the government's authority or if it supported a tyrannical government. Such a standing army, declared Hamilton, could “never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

James Madison (1751–1836) attributed the colonial victory to armed citizens. In The Federalist, No. 46 http://www.constitution.org/fed/federa46.htm), he wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

THE U.S. CONSTITUTION, THE RIGHT TO BEAR ARMS, AND THE MILITIA

The Revolutionary War ended in 1783. In 1787 thirty-nine men gathered in Philadelphia to sign the newly written Constitution. Three refused to sign because the document did not include a Bill of Rights. One reluctant signer protested that, without a Bill of Rights, Congress “at their pleasure may arm or disarm all or any part of the freemen of the United States.”

By 1791 James Madison had written the ten amendments to the Constitution that are known as the Bill of

Rights. He was influenced by state bills of rights and many amendment suggestions from the state conventions that ratified the Constitution. Overall, four basic beliefs were assimilated into the Second Amendment: the right of the individual to possess arms, the fear of a professional army, the dependence on militias regulated by the individual states, and the control of the military by civilians.

According to the Constitution Society, in Documents on the First Congress Debate on Arms and Militia (February 25, 2005, http://www.constitution.org/mil/militia_debate_1789.htm), the ratifying state conventions offered similar suggestions about the militia and the right to bear arms. Even though New Hampshire did not mention the militia, it did state that “no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be Quartered upon private Houses without the consent of the Owners.”

Another New Hampshire amendment read, “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Maryland proposed five separate amendments, which Virginia consolidated by stating: “The people have a right to keep and bear arms;… a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.”

The New York convention offered more than fifty amendments, including the following: “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State.”

As early as 1776 Congress had advised the colonies to form new governments “such as shall best conduce to the happiness and safety of their constituents.” Within a year after the Declaration of Independence was signed, nearly every state had drawn up a new constitution. The constitutions of several states guaranteed the rights of individuals to bear arms but forbade the maintenance of a standing army. In State Constitutional Right to Keep and Bear Arms Provisions, by Date (April 18, 2008, http://www.law.ucla.edu/volokh/beararms/statedat.htm), Eugene Volokh of the University of California, Los Angeles, notes that Pennsylvania's constitution ensured “that the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”

Because of their fear of tyranny and repression by a standing army, the colonists preferred state militias to provide protection and order. Such militias could also act as counterbalances against any national standing army. Some people believe that the individual right to bear arms was guaranteed by state laws providing for a militia made up of people trained to use arms.

The Bill of Rights was adopted in 1791. The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

THE MODERN DEBATE

Efforts to control gun ownership are usually a response to gun-related violence. An effort to decrease crime in the early 1930s led to an unsuccessful attempt by President Franklin D. Roosevelt (1882–1945) to pass legislation requiring the registration of handguns. Nonetheless, the National Firearms Act was passed in 1934, which imposed a tax on the manufacture and sale of “Title II weapons” and mandated the registration of those weapons. Title II weapons include machine guns, short-barreled rifles, short-barreled shotguns, silencers, destructive devices (such as grenades), and a catch-all category that includes novelty devices such as pen guns and cane guns. It did not include handguns. Table 1.1 lists the types of firearms used in crime and defines many of the types of weapons mentioned here.

The next major piece of gun control legislation—the Gun Control Act of 1968—was passed after the assassinations of Martin Luther King Jr. (1929–1968) and Senator Robert F. Kennedy (1925–1968). As of June 2008, the Gun Control Act of 1968 was still the primary gun control law in the United States. This law has provisions that include requiring serial numbers on all guns, setting standards for gun dealers, prohibiting mail-order and interstate sales of firearms, prohibiting the importation of guns not used for sporting purposes, and setting penalties for carrying and using firearms in crimes of violence or drug trafficking. It also prohibits certain categories of people, such as convicted felons, drug addicts, illegal aliens, and minors, from buying or possessing firearms. However, there was no efficient national system for carrying out background checks until the Brady law.

In 1993 the Brady Handgun Violence Prevention Act (the Brady law) was passed. It was named for James B. Brady (1939–), an official in the administration of President Ronald Reagan (1911–2004). Brady was shot during a 1981 assassination attempt on the president. The Brady law imposed a five-day waiting period on handgun purchases and a background check on buyers to determine whether they were illegal aliens or had a history of criminal behavior, mental illness, or drug use. It required state and local law

enforcement agencies to carry out the background checks until a national system could be established. These early background checks were never carried out to any great extent because Congress did not provide the funds, and in 1997 the requirement was found unconstitutional by the U.S. Supreme Court under the Tenth Amendment (states' rights). The Court stated in Printz v. United States (521 U.S. 898) that the federal government had no right to order state and local law enforcement agencies to carry out federal programs.

As part of Phase II of the Brady law, the five-day waiting period and the background check requirement were replaced by a national database for background checks, which became effective November 30, 1998, and was still effective in 2008. Known as the National Instant Criminal Background Check System (NICS), this computerized system is managed by the Federal Bureau of Investigation. It is used to perform background checks on people seeking to buy handguns or long guns from federal firearms licensees. (A Federal Firearms License is required for anyone selling a firearm.) In National Instant Criminal Background Check System (NICS): Operations 2005 (January 2006, http://www.fbi.gov/hq/cjisd/nics/ops_report2005/ops_report2005.pdf), the NICS reports that on November 1, 2005, the system completed its sixty millionth background check; in 91.5% of cases the results of background checks were available within seconds to minutes of the data entry.

“Collective Rights” versus “Individual Rights”

The modern debate over gun control is described by the political scientist Robert J. Spitzer in The Politics of Gun Control (2008) as a split between a “collective rights” interpretation and an “individual rights” interpretation of the Second Amendment. Spitzer calls the Second Amendment a “touchstone of the gun debate.”

Proponents of the collective rights argument favor stricter control of guns. They point to the opening words of the Second Amendment—“A well regulated militia, being necessary to the security of a free state”—as an indication that the amendment was intended to guarantee the right of states to maintain militias. They argue that since colonial times the concept of a citizens' militia has fallen from use, having been replaced by the National Guard. By this view, the general population does not need unfettered access to guns, as they are no longer expected to form a militia during times of need.

In contrast, proponents of the individual rights argument hold that individuals have a right to keep and bear arms. Gun control opponents add that the phrase “right of the people” is used in the Second Amendment, as well as in other amendments in the Bill of Rights, and in each case it refers to a right of individuals. Courts have ruled in favor of both interpretations.

In November 2001 the U.S. Court of Appeals for the Fifth Circuit held in United States v. Emerson (No. 99-10331) that the Second Amendment protects the right of individuals to “privately possess and bear their own firearms.” Conversely, in December 2002 the U.S. Court of Appeals for the Ninth Circuit ruled in Silveira v. Lockyer (No. 01-15098) that the Second Amendment does not grant Americans a personal right to carry firearms. The court's ruling said that the purpose of the Second Amendment was to maintain effective state militias. In December 2003 the Supreme Court declined to hear a challenge

of this ruling, leaving the question of gun ownership rights in limbo.

Then in November 2007 the High Court announced that it would hear an appeal involving the constitutionality of a Washington, D.C., law that bans the use or possession of all handguns. District of Columbia v. Heller (No. 07-290) was argued in March 2008. In June 2008 the Court ruled in a 5–4 decision that the Second Amendment guarantees individuals the right to bear arms. The majority opinion, written by Justice Antonin Scalia (1936–), provided for gun control legislation but noted that “it is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Justice John Paul Stevens (1920–), writing for the minority (dissenting) opinion, noted that future court cases would define “the scope of permissible regulations.”

Is Handgun Control Unconstitutional?

Handguns are a particular point of contention in the gun control debate because they are seen as the weapon of choice for criminals. They are also used for self-defense, and advocates of gun rights argue that any attempt to control their use is unconstitutional. Others point out that no gun control legislation—including legislation affecting handguns—has ever been declared unconstitutional by the Supreme Court under the Second Amendment.

Arguments for and against Gun Control

One of the key issues in the debate over gun control is whether placing greater restrictions on gun ownership will make society safer. Many opponents of gun control feel that access to guns makes it possible for law-abiding Americans to protect themselves and deter crime. Estimates vary widely as to the number of times handguns are used in self-defense each year. The U.S. Department of Justice reports in Guns in America: National Survey on Private Ownership and Use of Firearms (May 1997, http://www.ncjrs.gov/txtfiles/165476.txt) that this figure is 108,000. A much higher figure is reported by the criminologists Gary Kleck and Marc Gertz. In “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun” (Journal of Criminal Law and Criminology, vol. 86, no. 1, 1995), Kleck and Gertz calculate that guns in general are used in self-defense about 2.5 million times per year, and that more than 1.9 million of those self-defense cases involve handguns. In a personal communication in July 2006, Kleck noted that this estimate was determined using the 1993 crime rate and “because crime rates, and thus opportunities for self-defense, have declined by about half since then, the number of defensive gun uses has probably declined by a similar amount.”

Gun rights advocates say that more violent crimes are stopped by guns than are committed with guns. Gun control advocates argue that the defensive use of handguns does not offset the offensive use of handguns by criminals, which accounts for thousands of deaths and hundreds of thousands of injuries annually. Spitzer, a gun control advocate, notes that “on an individual level, a gun in the hand of a victim can thwart or stop a crime. On an aggregate level, however, more guns mean more gun problems, even though many citizens believe that guns make them safer.”

Gun control advocates point out that guns are often used to commit suicide or are involved in accidental shootings, especially involving children. Gun rights advocates often counter that if guns were not available, it would not stop suicides and accidental deaths. People who use guns to commit suicide may also commit this act in other ways, such as with poison or by driving off a cliff. Children who are accidentally shot and killed can also die by drinking toxic chemicals in the home or falling into a swimming pool, yet no background check or waiting period is required for the purchase of cars, toxic household chemicals, or swimming pools. The right to keep and bear these items is not constitutionally protected, they argue, and society might be safer without them as well. Spitzer counters by noting that “the suicide rate among the adult population would probably undergo a measurable reduction without guns because some would not seek other methods, and guns are more lethal than other suicide methods.” He admits that reducing the availability of guns would have only a modest effect on gun accidents.

Spitzer also contends that gun proliferation among law-abiding citizens will start an arms race with criminals, who will upgrade their weapons and be more willing to use them to kill. This, Spitzer believes, will inevitably result in an increase in gun-related crimes and accidents. Indeed, some law enforcement officers claim they are already outgunned by criminals with more powerful weapons.

The Second Amendment Foundation counters that just because the quality of handguns, like most consumer products, has improved is no reason to override the Second Amendment. Furthermore, they do not believe stricter gun control measures will actually keep weapons out of the hands of criminals. They argue that law-abiding citizens would be perilously exposed to lawbreakers if the government interpreted the Second Amendment to control or restrict gun use. Their access to guns through legal channels would become limited, whereas criminals would continue to acquire weapons through illegal means.

Spitzer argues that in the interest of national security a compromise must be reached between those who favor gun control and those who favor gun rights. He suggests that citizens should not have access to assault weapons, that access to handguns should be limited, and that ownership of hunting and sporting weapons should be protected.

Approaching Gun Violence as a Public Health Issue

Increasingly, researchers and officials are taking a public health approach to gun violence. In Private Guns, Public Health (2006), David Hemenway contends, “Considering that each year tens of thousands of Americans die from gunshot wounds, the reduction of firearm injuries—and the reduction of the accompanying dread and fear of firearm violence—is clearly within the purview of public health.”

Hemenway compares gun violence to major public health issues of the twentieth century, such as tuberculosis, tobacco use, and motor vehicle safety. In all these instances the government at national, state, and local levels mobilized in varying degrees to rally political and social support to effectively address the problems. Hemenway outlines several aims of a public health approach to gun violence, including:

• Add new analytic tools, new research sources, and professionals from public health and medical communities to gather scientific knowledge about gun violence and to create programs to combat it.
• Mobilize national, state, and local governmental and nongovernmental agencies to work to reduce gun violence.
• Create a new government agency empowered to regulate firearms as a consumer product and to maintain a national death-data system that will track gun fatalities of all types.
• Strengthen the systematic effort to stop the supply of guns to criminals, through gun tracing and other methods, instead of focusing only on locking up criminals after a crime is committed.
• License and register all gun owners, thus allowing officials to track all legal firearm transfers.
• Change the belief that gun violence is a part of the national culture and cannot be altered.

To reduce the problem of gun violence, Hemenway proposes a public health approach that uses multiple strategies and many partners. He concludes that the public health approach is ideally suited to deal with gun violence: “Public health emphasizes prevention rather than fault-finding, blame, or revenge. It uses science rather than belief as its basis and relies on accurate data collection and scientific analysis. It promotes a wide variety of interventions— environmental as well as individual—and integrates the activities of a wide variety of disciplines and institutions. Most important, public health brings a pragmatic [practical] attitude to problems—finding innovative solutions and eliminating the fatalistic and complacent beliefs that little can be done to reduce the problem.”