From: Subject: The Right to Keep and Bear Arms Date: Thu, 11 Jan 2007 21:23:58 -0800 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0000_01C735C6.CE639D20" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3028 This is a multi-part message in MIME format. ------=_NextPart_000_0000_01C735C6.CE639D20 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.constitution.org/mil/rkba1982.htm The Right to Keep and Bear Arms

The Right to Keep and Bear Arms

REPORT

of the

SUBCOMMITTEE ON THE CONSTITUTION

of the

UNITED STATES SENATE

NINETY-SEVENTH CONGRESS

Second Session

February 1982

Printed for the use of the Committee on the Judiciary

______

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON: 1982

88-618 0
For sale by the Superintendent of Documents,
U. S. = Government=20 Printing Office
Washington, D.C. 20402

COMMITTEE ON THE JUDICIARY

STROM THURMOND, South Carolina, Chairman

CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania

Vinton DeVane Lide, Chief Counsel

Quentin Crommelin, Jr., Staff Director

SUBCOMMITTEE ON THE CONSTITUTION

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
Stephen J. Markman, Chief Counsel and Staff Director
Randall Rader, General Counsel
Peter E. Ornsby, Counsel
Robert Feidler, Minority Counsel

CONTENTS

____________

PREFACE

"To preserve liberty, it is essential that the whole body of the = people=20 always possess arms, and be taught alike, especially when young, how = to use=20 them." (Richard Henry Lee, Virginia delegate to the Continental = Congress,=20 initiator of the Declaration of Independence, and member of the first = Senate,=20 which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who = is able=20 may have a gun." (Patrick Henry, in the Virginia Convention on the = ratification of the Constitution.)

"The advantage of being armed . . . the Americans possess over = the=20 people of all other nations . . . Notwithstanding the military = establishments=20 in the several Kingdoms of Europe, which are carried as far as the = public=20 resources will bear, the governments are afraid to trust the people = with=20 arms." (James Madison, author of the Bill of Rights, in his = Federalist=20 Paper No. 46.)

"A well regulated Militia, being necessary to the security of a = free=20 State, the right of the people to keep and bear arms, shall not be=20 infringed." (Second Amendment to the = Constitution.)

In my studies as an attorney and as a United States Senator, I have=20 constantly been amazed by the indifference or even hostility shown the = Second=20 Amendment by courts, legislatures, and commentators. James Madison would = be=20 startled to hear that his recognition of a right to keep and bear arms, = which=20 passed the House by a voice vote without objection and hardly a debate, = has=20 since been construed in but a single, and most ambiguous Supreme Court = decision,=20 whereas his proposals for freedom of religion, which he made reluctantly = out of=20 fear that they would be rejected or narrowed beyond use, and those for = freedom=20 of assembly, which passed only after a lengthy and bitter debate, are = the=20 subject of scores of detailed and favorable decisions. Thomas Jefferson, = who=20 kept a veritable armory of pistols, rifles and shotguns at Monticello, = and=20 advised his nephew to forsake other sports in favor of hunting, would be = astounded to hear supposed civil libertarians claim firearm ownership = should be=20 restricted. Samuel Adams, a handgun owner who pressed for an amendment = stating=20 that the "Constitution shall never be construed . . . to prevent the = people=20 of the United States who are peaceable citizens from keeping their own = arms,"=20 would be shocked to hear that his native state today imposes a = year's=20 sentence, without probation or parole, for carrying a firearm without a = police=20 permit.

This is not to imply that courts have totally ignored the impact of = the=20 Second Amendment in the Bill of Rights. No fewer than twenty-one = decisions by=20 the courts of our states have recognized an individual right to keep and = bear=20 arms, and a majority of these have not only recognized the right but = invalidated=20 laws or regulations which abridged it. Yet in all too many instances, = courts or=20 commentators have sought, for reasons only tangentially related to=20 constitutional history, to construe this right out of existence. They = argue that=20 the Second Amendment's words "right of the people" mean "a right of = the=20 state" =97 apparently overlooking the impact of those same words = when used in=20 the First and Fourth Amendments. The "right of the people" to = assemble or=20 to be free from unreasonable searches and seizures is not contested as = an=20 individual guarantee. Still they ignore consistency and claim that the = right to=20 "bear arms" relates only to military uses. This not only violates = a=20 consistent constitutional reading of "right of the people" but also = ignores that=20 the second amendment protects a right to "keep" arms. These = commentators=20 contend instead that the amendment's preamble regarding the necessity of = a=20 "well regulated militia . . . to a free state" means that the right = to keep=20 and bear arms applies only to a National Guard. Such a reading fails to = note=20 that the Framers used the term "militia" to relate to every = citizen=20 capable of bearing arms, and that the Congress has established the = present=20 National Guard under its own power to raise armies, expressly stating = that it=20 was not doing so under its power to organize and arm the militia.

When the first Congress convened for the purpose of drafting a Bill = of=20 Rights, it delegated the task to James Madison. Madison did not write = upon a=20 blank tablet. Instead, he obtained a pamphlet listing the State = proposals for a=20 bill of rights and sought to produce a briefer version incorporating all = the=20 vital proposals of these. His purpose was to incorporate, not = distinguish by=20 technical changes, proposals such as that of the Pennsylvania minority, = Sam=20 Adams, or the New Hampshire delegates. Madison proposed among other = rights that=20 "That right of the people to keep and bear arms shall not be = infringed; a=20 well armed and well regulated militia being the best security of a free = country;=20 but no person religiously scrupulous of bearing arms shall be compelled = to=20 render military service in person." I n the House, this was = initially=20 modified so that the militia clause came before the proposal recognizing = the=20 right. The proposals for the Bill of Rights were then trimmed in the = interests=20 of brevity. The conscientious objector clause was removed following = objections=20 by Elbridge Gerry, who complained that future Congresses might abuse the = exemption to excuse everyone from military service.

The proposal finally passed the House in its present form: "A well = regulated militia, being necessary for the preservation of a free state, = the=20 right of the people to keep and bear arms shall not be infringed." = In this=20 form it was submitted into the Senate, which passed it the following = day. The=20 Senate in the process indicated its intent that the right be an = individual one,=20 for private purposes, by rejecting an amendment which would have limited = the=20 keeping and bearing of arms to bearing "For the common = defense".

The earliest American constitutional commentators concurred in giving = this=20 broad reading to the amendment. When St. George Tucker, later Chief = Justice of=20 the Virginia Supreme Court, in 1803 published an edition of Blackstone = annotated=20 to American law, he followed Blackstone's citation of the right of the = subject=20 "of having arms suitable to their condition and degree, and such as = are=20 allowed by law" with a citation to the Second Amendment, "And = this=20 without any qualification as to their condition or degree, as is the = case in the=20 British government." William Rawle's "View of the Constitution" = published in=20 Philadelphia in 1825 noted that under the Second Amendment: "The = prohibition=20 is general. No clause in the Constitution could by a rule of = construction be=20 conceived to give to Congress a power to disarm the people. Such a = flagitious=20 attempt could only be made under some general pretense by a state = legislature.=20 But if in blind pursuit of inordinate power, either should attempt it, = this=20 amendment may be appealed to as a restraint on both." The Jefferson = papers=20 in the Library of Congress show that both Tucker and Rawle were friends = of, and=20 corresponded with, Thomas Jefferson. Their views are those of = contemporaries of=20 Jefferson, Madison and others, and are entitled to special weight. A few = years=20 later, Joseph Story in his "Commentaries on the=20 Constitution" considered the right to keep and bear arms as = "the=20 palladium of the liberties of the republic", which deterred tyranny = and=20 enabled the citizenry at large to overthrow it should it come to = pass.

Subsequent legislation in the second Congress likewise supports the=20 interpretation of the Second Amendment that creates an individual right. = In the=20 Militia Act of 1792, the second Congress defined "militia of the = United=20 States" to include almost every free adult male in the United = States. These=20 persons were obligated by law to possess a firearm and a minimum supply = of=20 ammunition and military equipment. This statute, incidentally, remained = in=20 effect into the early years of the present century as a legal = requirement of gun=20 ownership for most of the population of the United States. There can by = little=20 doubt from this that when the Congress and the people spoke of a = "militia", they=20 had reference to the traditional concept of the entire populace capable = of=20 bearing arms, and not to any formal group such as what is today called = the=20 National Guard. The purpose was to create an armed citizenry, which the=20 political theorists at the time considered essential to ward off = tyranny. From=20 this militia, appropriate measures might create a "well regulated = militia" of=20 individuals trained in their duties and responsibilities as citizens and = owners=20 of firearms.

If gun laws in fact worked, the sponsors of this type of legislation = should=20 have no difficulty drawing upon long lists of examples of crime rates = reduced by=20 such legislation. That they cannot do so after a century and a half of = trying =97=20 that they must sweep under the rug the southern attempts at gun control = in the=20 1870-1910 period, the northeastern attempts in the 1920-1939 period, the = attempts at both Federal and State levels in 1965-1976 =97 establishes = the=20 repeated, complete and inevitable failure of gun laws to control serious = crime.

Immediately upon assuming chairmanship of the Subcommittee on the=20 Constitution, I sponsored the report which follows as an effort to = study, rather=20 than ignore, the history of the controversy over the right to keep and = bear=20 arms. Utilizing the research capabilities of the Subcommittee on the=20 Constitution, the resources of the Library of Congress, and the = assistance of=20 constitutional scholars such as Mary Kaaren Jolly, Steven Halbrook, and = David T.=20 Hardy, the subcommittee has managed to uncover information on the right = to keep=20 and bear arms which documents quite clearly its status as a major = individual=20 right of American citizens. We did not guess at the purpose of the = British 1689=20 Declaration of Rights; we located the Journals of the House of Commons = and=20 private notes of the Declaration's sponsors, now dead for two centuries. = We did=20 not make suppositions as to colonial interpretations of that = Declaration's right=20 to keep arms; we examined colonial newspapers which discussed it. We did = not=20 speculate as to the intent of the framers of the second amendment; we = examined=20 James Madison's drafts for it, his handwritten outlines of speeches upon = the=20 Bill of Rights, and discussions of the second amendment by early = scholars who=20 were personal friends of Madison, Jefferson, and Washington while these = still=20 lived. What the Subcommittee on the Constitution uncovered was clear =97 = and long=20 lost =97 proof that the second amendment to our Constitution was = intended as an=20 individual right of the American citizen to keep and carry arms in a = peaceful=20 manner, for protection of himself, his family, and his freedoms. The = summary of=20 our research and findings form the first portion of this report.

In the interest of fairness and the presentation of a complete = picture, we=20 also invited groups which were likely to oppose this recognition of = freedoms to=20 submit their views. The statements of two associations who replied are=20 reproduced here following the report of the Subcommittee. The = Subcommittee also=20 invited statements by Messrs. Halbrook and Hardy, and by the National = Rifle=20 Association, whose statements likewise follow our report.

When I became chairman of the Subcommittee on the Constitution, I = hoped that=20 I would be able to assist in the protection of the constitutional rights = of=20 American citizens, rights which have too often been eroded in the belief = that=20 government could be relied upon for quick solutions to difficult = problems.

Both as an American citizen and as a United States Senator I = repudiate this=20 view. I likewise repudiate the approach of those who believe to solve = American=20 problems you simply become something other than American. To my mind, = the=20 uniqueness of our free institutions, the fact that an American citizen = can boast=20 freedoms unknown in any other land, is all the more reason to resist any = erosion=20 of our individual rights. When our ancestors forged a land "conceived = in=20 liberty", they did so with musket and rifle. When they reacted to = attempts=20 to dissolve their free institutions, and established their identity as a = free=20 nation, they did so as a nation of armed freemen. When they sought to = record=20 forever a guarantee of their rights, they devoted one full amendment out = of ten=20 to nothing but the protection of their right to keep and bear arms = against=20 governmental interference. Under my chairmanship the Subcommittee on the = Constitution will concern itself with a proper recognition of, and = respect for,=20 this right most valued by free men.

Orrin G. Hatch, Chairman
Subcommittee on the Constitution
January 20, 1982






The right to bear arms is a tradition with deep roots in American = society.=20 Thomas Jefferson proposed that "no free man shall ever be debarred = the use of=20 arms," and Samuel Adams called for an amendment banning any law = "to=20 prevent the people of the United States who are peaceable citizens from = keeping=20 their own arms." The Constitution of the State of Arizona, for = example,=20 recognizes the "right of an individual citizen to bear arms in = defense of=20 himself or the State."

Even though the tradition has deep roots, its application to modern = America=20 is the subject of intense controversy. Indeed, it is a controversy into = which=20 the Congress is beginning, once again, to immerse itself. I have = personally been=20 disappointed that so important an issue should have generally been so = thinly=20 researched and so minimally debated both in Congress and the courts. Our = Supreme=20 Court has but once touched on its meaning at the Federal level and that=20 decision, now nearly a half-century old, is so ambiguous that any school = of=20 thought can find some support in it. All Supreme Court decisions on the = second=20 amendment's application to the States came in the last century, when=20 constitutional law was far different than it is today. As ranking = minority=20 member of the Subcommittee on the Constitution, I, therefore, welcome = the effort=20 which led to this report =97 a report based not only upon the = independent research=20 of the subcommittee staff, but also upon full and fair presentation of = the cases=20 by all interested groups and individual scholars.

I personally believe that it is necessary for the Congress to amend = the Gun=20 Control Act of 1968. I welcome the opportunity to introduce this = discussion of=20 how best these amendments might be made.

The Constitution subcommittee staff has prepared this monograph = bringing=20 together proponents of both sides of the debate over the 1968 Act. I = believe=20 that the statements contained herein present the arguments fairly and=20 thoroughly. I commend Senator Hatch, chairman of the subcommittee, for = having=20 this excellent reference work prepared. I am sure that it will be of = great=20 assistance to the Congress as it debates the second amendment and = considers=20 legislation to amend the Gun Control Act.

Dennis DeConcini,
Ranking Minority Member,
Subcommittee on the Constitution
January 20, 1982






History: Second Amendment Right to "Keep and Bear = Arms"

The right to keep and bear arms as a part of English and American law = antedates not only the Constitution, but also the discovery of firearms. = Under=20 the laws of Alfred the Great, whose reign began in 872 A.D., all English = citizens from the nobility to the peasants were obliged to privately = purchase=20 weapons and be available for military duty. 1= This=20 was in sharp contrast to the feudal system as it evolved in Europe, = under which=20 armament and military duties were concentrated in the nobility. The body = of=20 armed citizens were known as the "fyrd".

While a great many of the Saxon rights were abridged following the = Norman=20 conquest, the right and duty of arms possession was retained. Under the = Assize=20 of Arms of 1181, "the whole community of freemen" between the = ages of 15=20 and 40 were required by law to possess certain arms, which were arranged = in=20 proportion to their possessions. 2= They=20 were required twice a year to demonstrate to Royal officials that they = were=20 appropriately armed. In 1253, another Assize of Arms expanded the duty = of=20 armament to include not only freemen, but also villeins, who were the = English=20 equivalent of serfs. Now all "citizens, burgesses, free tenants, = villeins and=20 others from 15 to 60 years of age" were obligated to be armed. 3= =20 While on the Continent the villeins were regarded as little more than = animals=20 hungering for rebellion, the English legal system not only permitted, = but=20 affirmatively required them, to be armed.

The thirteenth century saw further definitions of this right as the = long bow,=20 a formidable armor-piercing weapon, became increasingly the mainstay of = British=20 national policy. In 1285, Edward I commanded that all persons comply = with the=20 earlier Assizes and added that "anyone else who can afford them shall = keep=20 bows and arrows." 4= The=20 right of armament was subject only to narrow limitations. In 1279, it = was=20 ordered that those appearing in Parliament or other public assemblies = "shall=20 come without all force and armor, well and peaceably". 5= In=20 1328, the statute of Northampton ordered that no one use their arms = in=20 "affray of the peace, nor to go nor ride armed by day or by night in = fairs,=20 markets, nor in the presence of the justices or other ministers." = 6= =20 English courts construed this ban consistently with the general right of = private=20 armament as applying only to wearing of arms "accompanied with such=20 circumstances as are apt to terrify the people." 7= In=20 1369, the King ordered that the sheriffs of London require all = citizens "at=20 leisure time on holidays" to "use in their recreation bowes and=20 arrows" and to stop all other games which might distract them from = this=20 practice. 8=

The Tudor kings experimented with limits upon specialized weapons =97 = mainly=20 crossbows and the then-new firearms. These measures were not intended to = disarm=20 the citizenry, but on the contrary, to prevent their being diverted from = longbow=20 practice by sport with other weapons which were considered less = effective. Even=20 these narrow measures were shortlived. In 1503, Henry VII limited = shooting (but=20 not possession) of crossbows to those with land worth 200 marks annual = rental,=20 but provided an exception for those who "shote owt of a howse for the = lawefull defens of the same". 9= In=20 1511, Henry VIII increased the property requirement to 300 marks. He = also=20 expanded the requirement of longbow ownership, requiring all citizens to = "use=20 and exercyse shootyng in longbowes, and also have a bowe and arrowes=20 contynually" in the house. 10=20 Fathers were required by law to purchase bows and arrows for their sons = between=20 the age of 7 and 14 and to train them in longbow use.

In 1514 the ban on crossbows was extended to include firearms. 11 But=20 in 1533, Henry reduced the property qualification to 100 pounds per = year; in=20 1541 he limited it to possession of small firearms ("of the length of = one=20 hole yard" for some firearms and "thre quarters of a yarde" = for=20 others)12and=20 eventually he repealed the entire statute by proclamation.13 The=20 later Tudor monarchs continued the system and Elizabeth added to it by = creating=20 what came to be known as "train bands", selected portions of the = citizenry=20 chosen for special training. These trained bands were distinguished from = the=20 "militia", which term was first used during the Spanish Armada = crisis to=20 designate the entire of the armed citizenry. 14

The militia continued to be a pivotal force in the English political = system.=20 The British historian Charles Oman considers the existence of the armed=20 citizenry to be a major reason for the moderation of monarchical rule in = Great=20 Britain; "More than once he [Henry VIII] had to restrain himself, = when he=20 discovered that the general feeling of his subjects was against him... = His=20 'gentlemen pensioners' and yeomen of the guard were but a handful, and = bills or=20 bows were in every farm and cottage". 15

When civil war broke out in 1642, the critical issue was whether the = King or=20 Parliament had the right to control the militia. 16 The=20 aftermath of the civil war saw England in temporary control of a = military=20 government, which repeated dissolved Parliament and authorized its = officers to=20 "search for, and seize all arms" owned by Catholics, opponents of = the=20 government, "or any other person whom the commissioners had judged = dangerous=20 to the peace of this Commonwealth". 17

The military government ended with the restoration of Charles II. = Charles in=20 turn opened his reign with a variety of repressive legislation, = expanding the=20 definition of treason, establishing press censorship and ordering his = supporters=20 to form their own troops, "the officers to be numerous, disaffected = persons=20 watched and not allowed to assemble, and their arms seized". 18 In=20 1662, a Militia Act was enacted empowering officials " to search for = and=20 seize all arms in the custody or possession of any person or persons = whom the=20 said lieutenants or any two or more of their deputies shall judge = dangerous to=20 the peace of the kingdom". 19=20 Gunsmiths were ordered to deliver to the government lists of all = purchasers.=20 20=20 These confiscations were continued under James II, who directed them=20 particularly against the Irish population: "Although the country was = infested=20 by predatory bands, a Protestant gentleman could scarcely obtain = permission to=20 keep a brace of pistols." 21

In 1668, the government of James was overturned in a peaceful = uprising which=20 came to be know as "The Glorious Revolution". Parliament resolved = that=20 James had abdicated and promulgated a Declaration of Rights, later = enacted as=20 the Bill of Rights. Before coronation, his successor William of Orange, = was=20 required to swear to respect these rights. The debates in the House of = Commons=20 over this Declaration of Rights focused largely upon the disarmament = under the=20 1662 Militia Act. One member complained that "an act of Parliament = was made=20 to disarm all Englishmen, who the lieutenant should suspect, by day or = night, by=20 force or otherwise =97 this was done in Ireland for the sake of putting = arms into=20 Irish hands." The speech of another is summarized as "militia = bill =97=20 power to disarm all England =97 now done in Ireland." A third = complained=20 "Arbitrary power exercised by the ministry. . . . Militia =97 = imprisoning=20 without reason; disarming =97 himself disarmed." Yet another = summarized his=20 complaints "Militia Act =97 an abominable thing to disarm the = nation...."=20 22

The Bill of Rights, as drafted in the House of Commons, simply = provided that=20 "the acts concerning the militia are grievous to the subject" and = that=20 "it is necessary for the public Safety that the Subjects, which are=20 Protestants, should provide and keep arms for the common defense; And = that the=20 Arms which have been seized, and taken from them, be restored." = 23 The=20 House of Lords changed this to make it a more positive declaration of an = individual right under English law: "That the subjects which are = Protestant=20 may have arms for their defense suitable to their conditions and as = allowed by=20 law." 24 The=20 only limitation was on ownership by Catholics, who at that time composed = only a=20 few percent of the British population and were subject to a wide variety = of=20 punitive legislation. The Parliament subsequently made clear what it = meant by=20 "suitable to their conditions and as allowed by law". The poorer = citizens=20 had been restricted from owning firearms, as well as traps and other = commodities=20 useful for hunting, by the 1671 Game Act. Following the Bill of Rights,=20 Parliament reenacted that statute, leaving its operative parts unchanged = with=20 one exception =97 which removed the word "guns" from the list of = items=20 forbidden to the poorer citizens. 25 The=20 right to keep and bear arms would henceforth belong to all English = subjects,=20 rich and poor alike.

In the colonies, availability of hunting and need for defense led to = armament=20 statutes comparable to those of the early Saxon times. In 1623, Virginia = forbade=20 its colonists to travel unless the were "well armed"; in 1631 it = required=20 colonists to engage in target practice on Sunday and "to bring their = peeces=20 to church." 26 In=20 1658 it required every householder to have a functioning firearm within = his=20 house and in 1673 its laws provided that a citizen who claimed he was = too poor=20 to purchase a firearm would have one purchased for him by the = government, which=20 would then require him to pay a reasonable price when able to do so. = 27 In=20 Massachusetts, the first session of the legislature ordered that not = only=20 freemen, but also indentured servants own firearms and in 1644 it = imposed a=20 stern 6 shilling fine upon any citizen who was not armed. 28

When the British government began to increase its military presence = in the=20 colonies in the mid-eighteenth century, Massachusetts responded by = calling upon=20 its citizens to arm themselves in defense. One colonial newspaper argued = that it=20 was impossible to complain that this act was illegal since they were = "British=20 subjects, to whom the privilege of possessing arms is expressly = recognized by=20 the Bill of Rights" while another argued that this "is a natural = right=20 which the people have reserved to themselves, confirmed by the Bill of = Rights,=20 to keep arms for their own defense". 29 The=20 newspaper cited Blackstone's commentaries on the laws of England, which = had=20 listed the "having and using arms for self preservation and defense" = among the=20 "absolute rights of individuals." The colonists felt they had an = absolute=20 right at common law to own firearms.

Together with freedom of the press, the right to keep and bear arms = became=20 one of the individual rights most prized by the colonists. When British = troops=20 seized a militia arsenal in September, 1774, and incorrect rumors that = colonists=20 had been killed spread through Massachusetts, 60,000 citizens took up = arms.=20 30 A=20 few months later, when Patrick Henry delivered his famed "Give me = liberty or=20 give me death" speech, he spoke in support of a proposition "that a = well=20 regulated militia, composed of gentlemen and freemen, is the natural = strength=20 and only security of a free government...." Throughout the following = revolution, formal and informal units of armed citizens obstructed = British=20 communication, cut off foraging parties, and harassed the thinly = stretched=20 regular forces. When seven states adopted state "bills of rights" = following the Declaration of Independence, each of those bills of rights = provided either for protection of the concept of a militia or for an = express=20 right to keep and bear arms. 31

Following the revolution but previous to the adoption of the = Constitution,=20 debates over militia proposals occupied a large part of the political = scene. A=20 variety of plans were put forth by figures ranging from George = Washington to=20 Baron von Steuben. 32 All=20 the proposals called for a general duty of all citizens to be armed, = although=20 some proposals (most notably von Steuben's) also emphasized a "select = militia" which would be paid for its services and given special = training. In=20 this respect, this "select militia" was the successor of the = "trained=20 bands" and the predecessor of what is today the "national = guard". In=20 the debates over the Constitution, von Steuben's proposals were = criticized as=20 undemocratic. In Connecticut on writer complained of a proposal that = "this=20 looks too much like Baron von Steuben's militia, by which a standing = army was=20 meant and intended." 33 In=20 Pennsylvania, a delegate argued "Congress may give us a select = militia which=20 will, in fact, be a standing army =97 or Congress, afraid of a general = militia,=20 may say there will be no militia at all. When a select militia is = formed, the=20 people in general may be disarmed." 34=20 Richard Henry Lee, in his widely read pamphlet "Letters from the = Federal=20 Farmer to the Republican" worried that the people might be disarmed = "by=20 modeling the militia. Should one fifth or one eighth part of the people = capable=20 of bearing arms be made into a select militia, as has been proposed, and = those=20 the young and ardent parts of the community, possessed of little or no = property,=20 the former will answer all the purposes of an army, while the latter = will be=20 defenseless." He proposed that "the Constitution ought to secure = a=20 genuine, and guard against a select militia," adding that "to = preserve=20 liberty, it is essential that the whole body of the people always = possess arms=20 and be taught alike, especially when young, how to use them." 35

The suspicion of select militia units expressed in these passages is = a clear=20 indication that the framers of the Constitution did not seek to = guarantee a=20 State right to maintain formed groups similar to the National Guard, but = rather=20 to protect the right of individual citizens to keep and bear arms. Lee, = in=20 particular, sat in the Senate which approved the Bill of Rights. He = would hardly=20 have meant the second amendment to apply only to the select militias he = so=20 feared and disliked.

Other figures of the period were of like mind. In the Virginia = convention,=20 George Mason, drafter of the Virginia Bill of Rights, accused the = British of=20 having plotted "to disarm the people =97 that was the best and most = effective=20 way to enslave them", while Patrick Henry observed that, "The = great=20 object is that every man be armed" and "everyone who is able may = have a=20 gun". 36

Nor were the antifederalists, to whom we owe credit for a Bill of = Rights,=20 alone on this account. Federalist arguments also provide a source of = support for=20 an individual rights view. Their arguments in favor of the proposed = Constitution=20 also relied heavily upon universal armament. The proposed Constitution = had been=20 heavily criticized for its failure to ban or even limit standing armies. = Unable=20 to deny this omission, the Constitution's supporters frequently argued = to the=20 people that the universal armament of Americans made such limitations=20 unnecessary. A pamphlet written by Noah Webster, aimed at swaying = Pennsylvania=20 toward ratification, observed.

Before a standing army can rule, the people must be disarmed; as = they=20 are in almost every kingdom in Europe. The supreme power in America = cannot=20 enforce unjust laws by the sword, because the whole body of the people = are=20 armed, and constitute a force superior to any band of regular troops = that can=20 be, on any pretense, raised in the United States. 37

In the Massachusetts convention, Sedgewick echoed the same thought,=20 rhetorically asking an oppressive army could be formed or "if raised, = whether=20 they could subdue a Nation of freemen, who know how to prize liberty, = and who=20 have arms in their hands?" 38 In=20 Federalist Paper 46, Madison, later author of the Second Amendment, = mentioned=20 "The advantage of being armed, which the Americans possess over the = people of=20 all other countries" and that "notwithstanding the military=20 establishments in the several kingdoms of Europe, which are carried as = far as=20 the public resources will bear, the governments are afraid to trust the = people=20 with arms."

A third and even more compelling case for an individual rights = perspective on=20 the Second Amendment comes from the State demands for a bill of rights. = Numerous=20 state ratifications called for adoption of a Bill of Rights as a part of = the=20 Constitution. The first such call came from a group of Pennsylvania = delegates.=20 Their proposals, which were not adopted but had a critical effect on = future=20 debates, proposed among other rights that "the people have a right to = bear=20 arms for the defense of themselves and their own state, or the United = States, or=20 for the purpose of killing game; and no law shall be passed for = disarming the=20 people or any of them, unless for crimes committed, or a real danger of = public=20 injury from individuals." 39 In=20 Massachusetts, Sam Adams unsuccessfully pushed for a ratification = conditioned on=20 adoption of a Bill of Rights, beginning with a guarantee "That the = said=20 Constitution shall never be construed to authorize Congress to infringe = the just=20 liberty of the press or the rights of conscience; or to prevent the = people of=20 the United States who are peaceable citizens from keeping their own=20 arms...." 40=20 When New Hampshire gave the Constitution the ninth vote needed for its = passing=20 into effect, it called for adoption of a Bill of Rights which included = the=20 provision that "Congress shall never disarm any citizen unless such = as are or=20 have been in actual rebellion". 41=20 Virginia and North Carolina thereafter called for a provision "that = the=20 people have the right to keep and bear arms; that a well regulated = militia=20 composed of the body of the people trained to arms is the proper, = natural and=20 safe defense of a free state." 42

When the first Congress convened for the purpose of drafting a Bill = of=20 Rights, it delegated the task to James Madison. Madison did not write = upon a=20 blank tablet. Instead, he obtained a pamphlet listing the State = proposals for a=20 Bill of Rights and sought to produce a briefer version incorporating all = the=20 vital proposals of these. His purpose was to incorporate, not = distinguish by=20 technical changes, proposals such as that of the Pennsylvania minority, = Sam=20 Adams, and the New Hampshire delegates. Madison proposed among other = rights=20 that:

The right of the people to keep and bear arms shall not be = infringed; a=20 well armed and well regulated militia being the best security of a = free=20 country; but no person religiously scrupulous of bearing arms shall be = compelled to render military service." 43

In the House, this was initially modified so that the militia clause = came=20 before the proposal recognizing the right. The proposals for the Bill of = Rights=20 were then trimmed in the interests of brevity. The conscientious = objector clause=20 was removed following objections by Eldridge Gerry, who complained that = future=20 Congresses might abuse the exemption for the scrupulous to excuse = everyone from=20 military service.

The proposal finally passed the House in its present form: "A well = regulated militia, being necessary for the security of a free state, the = right=20 of the people to keep and bear arms, shall not be infringed." In = this form=20 it was submitted to the Senate, which passed it the following day. The = Senate in=20 the process indicated its intent that the right be an individual one, = for=20 private purposes, by rejecting an amendment which would have limited the = keeping=20 and bearing of arms to bearing "for the common defense".

The earliest American constitutional commentators concurred in giving = this=20 broad reading to the amendment. When St. George Tucker, later Chief = Justice of=20 the Virginia Supreme Court, in 1803 published an edition of Blackstone = annotated=20 to American law, he followed Blackstone's citation of the right of the=20 subject"of having arms suitable to their condition and degree, and = such as=20 are allowed by law" with a citation to the Second Amendment, "And = this=20 without any qualification as to their condition or degree, as is the = case in the=20 British government." 44William=20 Rawle's "View of the Constitution" published in Philadelphia in = 1825=20 noted that under the Second Amendment

"The prohibition is general. No clause in the Constitution could = by a=20 rule of construction be conceived to give to Congress a power to = disarm the=20 people. Such a flagitious attempt could only be made under some = general=20 pretense by a state legislature. But if in blind pursuit of inordinate = power,=20 either should at tempt it, this amendment may be appealed to as a = restraint on=20 both." 45

The Jefferson papers in the Library of Congress show that both Tucker = and=20 Rawle were friends of, and corresponded with, Thomas Jefferson. This = suggests=20 that their assessment, as contemporaries of the Constitution's drafters, = should=20 be afforded special consideration.

Later commentators agreed with Tucker and Rawle. For instance, Joseph = Story=20 in his "Commentaries on=20 the Constitution" considered the right to keep and bear arms as = "the=20 palladium of the liberties of the republic", which deterred tyranny = and=20 enabled the citizenry at large to overthrow it should it come to pass. = 46

Subsequent legislation in the second Congress likewise supports the=20 interpretation of the Second Amendment that creates an individual right. = In the=20 Militia Act of 1792, the second Congress defined "militia of the = United=20 States" to include almost every free adult male in the United = States. These=20 persons were obligated by law to possess a firearm and a minimum supply = of=20 ammunition and military equipment. 47=20 This statute, incidentally, remained in effect into the early years of = the=20 present century as a legal requirement of gun ownership for most of the=20 population of the United States. There can by little doubt from this = that when=20 the Congress and the people spoke of a "militia", they had reference to = the=20 traditional concept of the entire populace capable of bearing arms, and = not to=20 any formal group such as what is today called the National Guard. The = purpose=20 was to create an armed citizenry, such as the political theorists at the = time=20 considered essential to ward off tyranny. From this militia, appropriate = measures might create a "well regulated militia" of individuals = trained=20 in their duties and responsibilities as citizens and owners of = firearms.

The Second Amendment as such was rarely litigated prior to the = passage of the=20 Fourteenth Amendment. Prior to that time, most courts accepted that the = commands=20 of the federal Bill of Rights did not apply to the states. Since there = was no=20 federal firearms legislation at this time, there was no legislation = which was=20 directly subject to the Second Amendment, if the accepted = interpretations were=20 followed. However, a broad variety of state legislation was struck down = under=20 state guarantees of the right to keep and bear arms and even in a few = cases,=20 under the Second Amendment, when it came before courts which considered = the=20 federal protections applicable to the states. Kentucky in 1813 enacted = the first=20 carrying concealed weapon statute in the United States; in 1822, the = Kentucky=20 Court of Appeals struck down the law as a violation of the state = constitutional=20 protection of the right to keep and bear arms; "And can there be = entertained=20 a reasonable doubt but the provisions of that act import a restraint on = the=20 right of the citizen to bear arms? The court apprehends it not. The = right=20 existed at the adoption of the Constitution; it then had no limit short = of the=20 moral power of the citizens to exercise it, and in fact consisted of = nothing=20 else but the liberty of the citizen to bear arms." 48 On=20 the other hand, a similar measure was sustained in Indiana, not upon the = grounds=20 that a right to keep and bear arms did not apply, but rather upon the = notion=20 that a statute banning only concealed carrying still permitted the = carrying of=20 arms and merely regulated on possible way of carrying them. 49 A=20 few years later, the Supreme Court of Alabama upheld a similar statute = but=20 added, "We do not desire to be understood as maintaining, that in = regulating=20 the manner of wearing arms, the legislature has no other limit than its = own=20 discretion. A statute which, under the pretense of regulation, amounts = to a=20 destruction of that right, or which requires arms to be so borne as to = render=20 them wholly useless for the purpose of defense, would be clearly=20 unconstitutional." 50=20 When the Arkansas Supreme Court in 1842 upheld a carrying concealed = weapons=20 statute, the chief justice explained that the statute would not "detract = anything from the power of the people to defend their free state and the = established institutions of the country. It prohibits only the wearing = of=20 certain arms concealed. This is simply a regulation as to the manner of = bearing=20 such arms as are specified", while the dissenting justice proclaimed = "I deny=20 that any just or free government upon earth has the power to disarm its=20 citizens". 51

Sometimes courts went farther. When in 1837, Georgia totally banned = the sale=20 of pistols (excepting the larger pistols "known and used as = horsemen's=20 pistols" ) and other weapons, the Georgia Supreme Court in = Nunn v.=20 State held the statute unconstitutional under the Second = Amendment to=20 the federal Constitution. The court held that the Bill of Rights = protected=20 natural rights which were fully as capable of infringement by states as = by the=20 federal government and that the Second Amendment provided "the right = of the=20 whole people, old and young, men, women and boys, and not militia only, = to keep=20 and bear arms of every description, and not merely such as are used by = the=20 militia, shall not be infringed, curtailed, or broken in on, in the = slightest=20 degree; and all this for the important end to be attained: the rearing = up and=20 qualifying of a well regulated militia, so vitally necessary to the = security of=20 a free state." 52=20 Prior to the Civil War, the Supreme Court of the United States likewise=20 indicated that the privileges of citizenship included the individual = right to=20 own and carry firearms. In the notorious Dred Scott case, the court held = that=20 black Americans were not citizens and could not be made such by any = state. This=20 decision, which by striking down the Missouri Compromise did so much to = bring on=20 the Civil War, listed what the Supreme Court considered the rights of = American=20 citizens by way of illustrating what rights would have to be given to = black=20 Americans if the Court were to recognize them as full fledged = citizens:

It would give to persons of the negro race, who are recognized = as=20 citizens in any one state of the Union, the right to enter every other = state,=20 whenever they pleased. . . .and it would give them full liberty of = speech in=20 public and in private upon all subjects upon which its own citizens = might=20 meet; to hold public meetings upon political affairs, and to keep and = carry=20 arms wherever they went. 53

Following the Civil War, the legislative efforts which gave us three=20 amendments to the Constitution and our earliest civil rights acts = likewise=20 recognized the right to keep and bear arms as an existing constitutional = right=20 of the individual citizen and as a right specifically singled out as one = protected by the civil rights acts and by the Fourteenth Amendment to = the=20 Constitution, against infringement by state authorities. Much of the=20 reconstruction effort in the South had been hinged upon the creation of = "black=20 militias" composed of the armed and newly freed blacks, officered = largely by=20 black veterans of the Union Army. In the months after the Civil War, the = existing southern governments struck at these units with the enactment = of "black=20 codes" which either outlawed gun ownership by blacks entirely, or = imposed permit=20 systems for them, and permitted the confiscation of firearms owned by = blacks.=20 When the Civil Rights Act of 1866 was debated members both of the Senate = and the=20 House referred to the disarmament of blacks as a major consideration. = 54=20 Senator Trumbull cited provisions outlawing ownership of arms by blacks = as among=20 those which the Civil Rights Act would prevent. 55=20 Senator Sulsbury complained on the other hand that if the act were to be = passed=20 it would prevent his own state from enforcing a law banning gun = ownership by=20 individual free blacks. 56=20 Similar arguments were advanced during the debates over the "anti-KKK = act"; its=20 sponsor at one point explained that a section making it a federal crime = to=20 deprive a person of "arms or weapons he may have in his house or = possession=20 for the defense of his person, family, or property" was "intended = to=20 enforce the well-known constitutional provisions guaranteeing the right = in the=20 citizen 'keep and bear arms'." 57=20 Likewise, in the debates over the Fourteenth Amendment Congress = frequently=20 referred to the Second Amendment as one of the rights which it intended = to=20 guarantee against state action. 58

Following adoption of the Fourteenth Amendment, however, the Supreme = Court=20 held that that Amendment's prohibition against states depriving any = persons of=20 their federal "privileges and immunities" was to be given a = narrow=20 construction. In particular, the "privileges and immunities" = under the=20 Constitution would refer only to those rights which were not felt to = exist as a=20 process of natural right, but which were created solely by the = Constitution.=20 These might refer to rights such as voting in federal elections and of=20 interstate travel, which would clearly not exist except by virtue of the = existence of a federal government and which could not be said to be = "natural=20 rights". 59=20 This paradoxically meant that the rights which most persons would accept = as the=20 most important =97 those flowing from concepts of natural justice =97 = were devalued=20 at the expense of more technical rights. Thus when individuals were = charged with=20 having deprived black citizens of their right to freedom of assembly and = to keep=20 and bear arms, by violently breaking up a peaceable assembly of black = citizens,=20 the Supreme Court in United States v. Cruikshank 60=20 held that no indictment could be properly brought since the right "of = bearing=20 arms for a lawful purpose" is "not a right granted by the = Constitution.=20 Neither is it in any manner dependent upon that instrument for its=20 existence." Nor, in the view of the Court, was the right to = peacefully=20 assemble a right protected by the Fourteenth Amendment: "The right of = the=20 people peaceably to assemble for lawful purposes existed long before the = adoption of the Constitution of the United States. In fact, it is and = has always=20 been one of the attributes of citizenship under a free government. . . = .It was=20 not, therefore, a right granted to the people by the Constitution." = Thus the=20 very importance of the rights protected by the First and Second = Amendment was=20 used as the basis for the argument that they did not apply to the states = under=20 the Fourteenth Amendment. In later opinions, chiefly Presser v.=20 Illinois 61=20 andMiller v. Texas 62 the=20 Supreme Court adhered to the view. Cruikshank has clearly been = superseded by=20 twentieth century opinions which hold that portions of the Bill of = Rights =97 and=20 in particular the right to assembly with which Cruikshank dealt in = addition to=20 the Second Amendment =97 are binding upon the state governments. Given = the=20 legislative history of the Civil Rights Acts and the Fourteenth = Amendment, and=20 the more expanded views of incorporation which have become accepted in = our own=20 century, it is clear that the right to keep and bear arms was meant to = be and=20 should be protected under the civil rights statutes and the Fourteenth = Amendment=20 against infringement by officials acting under color of state law.

Within our own century, the only occasion upon which the Second = Amendment has=20 reached the Supreme Court came in United States v. Miller. 63=20 There, a prosecution for carrying a sawed off shotgun was dismissed = before trial=20 on Second Amendment grounds. In doing so, the court took no evidence as = to the=20 nature of the firearm or indeed any other factual matter. The Supreme = Court=20 reversed on procedural grounds, holding that the trial court could not = take=20 judicial notice of the relationship between a firearm and the Second = Amendment,=20 but must receive some manner of evidence. It did not formulate a test = nor state=20 precisely what relationship might be required. The court's statement = that the=20 amendment was adopted "to assure the continuation and render possible = the=20 effectiveness of such [militia] forces" and "must be interpreted and = applied=20 with that end in view", when combined with the court's statement that = all=20 constitutional sources "show plainly enough that the militia comprised = all males=20 physically capable of acting in concert for the common defense.... these = men=20 were expected to appear bearing arms supplied by themselves and of the = kind in=20 common use at the time," 64=20 suggests that at the very least private ownership by a person capable of = self=20 defense and using an ordinary privately owned firearm must be protected = by the=20 Second Amendment. What the Court did not do in Miller is even more = striking: It=20 did not suggest that the lower court take evidence on whether Miller = belonged to=20 the National Guard or a similar group. The hearing was to be on the = nature of=20 the firearm, not on the nature of its use; nor is there a single = suggestion that=20 National Guard status is relevant to the case.

The Second Amendment right to keep and bear arms therefore, is a = right of the=20 individual citizen to privately possess and carry in a peaceful manner = firearms=20 and similar arms. Such an "individual rights" interpretation is = in full=20 accord with the history of the right to keep and bear arms, as = previously=20 discussed. It is moreover in accord with contemporaneous statements and=20 formulations of the right by such founders of this nation as Thomas = Jefferson=20 and Samuel Adams, and accurately reflects the majority of the proposals = which=20 led up to the Bill of Rights itself. A number of state constitutions, = adopted=20 prior to or contemporaneously with the federal Constitution and Bill of = Rights,=20 similarly provided for a right of the people to keep and bear arms. If = in fact=20 this language creates a right protecting the states only, there might be = a=20 reason for it to be inserted in the federal Constitution but no reason = for it to=20 be inserted in state constitutions. State bills of rights necessarily = protect=20 only against action by the state, and by definition a state cannot = infringe its=20 own rights; to attempt to protect a right belonging to the state by = inserting it=20 in a limitation of the state's own powers would create an absurdity. The = fact=20 that the contemporaries of the framers did insert these words into = several state=20 constitutions would indicate clearly that they viewed the right as = belonging to=20 the individual citizen, thereby making it a right which could be = infringed=20 either by state or federal government and which must be protected = against=20 infringement by both.

Finally, the individual rights interpretation gives full meaning to = the words=20 chosen by the first Congress to reflect the right to keep and bear arms. = The=20 framers of the Bill of Rights consistently used the words "right of the = people"=20 to reflect individual rights =97 as when these words were used to = recognize the=20 "right of the people" to peaceably assemble, and the "right of the = people"=20 against unreasonable searches and seizures. They distinguished between = the=20 rights of the people and of the state in the Tenth Amendment. As = discussed=20 earlier, the "militia" itself referred to a concept of a universally = armed=20 people, not to any specifically organized unit. When the framers = referred to the=20 equivalent of our National Guard, they uniformly used the term "select = militia"=20 and distinguished this from "militia". Indeed, the debates over the = Constitution=20 constantly referred to the organized militia units as a threat to = freedom=20 comparable to that of a standing army, and stressed that such organized = units=20 did not constituted, and indeed were philosophically opposed to, the = concept of=20 a militia.

That the National Guard is not the "Militia" referred to in = the second=20 amendment is even clearer today. Congress has organized the National = Guard under=20 its power to "raise and support armies" and not its power to = "Provide=20 for the organizing, arming and disciplining the Militia". 65=20 This Congress chose to do in the interests of organizing reserve = military units=20 which were not limited in deployment by the strictures of our power over = the=20 constitutional militia, which can be called forth only "to execute = the laws=20 of the Union, suppress insurrections and repel invasions." The = modern=20 National Guard was specifically intended to avoid status as the = constitutional=20 militia, a distinction recognized by 10 U.S.C. Sec. = 311(a).

The conclusion is thus inescapable that the history, concept, and = wording of=20 the second amendment to the Constitution of the United States, as well = as its=20 interpretation by every major commentator and court in the first half = century=20 after its ratification, indicates that what is protected is an = individual right=20 of a private citizen to own and carry firearms in a peaceful manner.

REFERENCES

1. Charles Hollister, Anglo-Saxon = Military=20 Institutions 11-42 (Oxford University Press 1962); Francis Grose,=20 Military Antiquities Respecting a History of the British Army, = Vol. I at=20 1-2 (London, 1812).

2. Grose, supra, at 9-11; = Bruce Lyon,=20 A Constitutional and Legal History of Medieval England. 273 (2nd. = ed. New=20 York 1980).

3. J.J. Bagley and P.B. Rowley, A = Documentary=20 History of England. 1066-1540, Vol. I at 155-56 (New York = 1965).

4. Statute of Winchester (13 Edw. I = c. 6). See=20 also Bagley and Rowley, supra at 158.

5. 7 Ed. I c.2 (1279).

6. Statute of Northampton (2nd Edw. = III c.=20 3).

7. Rex v. Knight, 90 Eng. = Rep. 330; 87=20 Eng. Rep. 75 (King's Bench, 1686).

8. E. G. Heath, The Grey Goose Wing = 109 (London,=20 1971).

9. 19 Hen. VII c. 4 = (1503).

10. 3 Hen. VIII c. 13 = (1511).

11. 64 Hen. VIII c. 13 = (1514).

12. 33 Hen. VIII c. 6 = (1514).

13. Noel Perrin, Giving Up the = Gun 59-60=20 (Boston, 1979)

14. Jim Hill, The Minuteman in = War and=20 Peace 26-27 (Harrisburg, 1968)

15. Charles Oman, A History of = the Art of War=20 in the Sixteenth Century 288 (New York, 1937).

16. William Blackstone, Commentaries,= Vol. 2=20 at 412 (St. George Tucker, ed., Philadelphia 1803).

17. "An Act for Settling the = Militia,"=20 Ordinances and Acts of the Interregnum, Vol. 2 1320 (London, HMSO=20 1911).

18. 8 Calender of State Papers = (Domestic),=20 Charles II, No. 188, p. 150.

19. 14 Car. II c. 3 = (1662).

20. Joyce Malcolm, Disarmed: The = Loss of the=20 Right to Bear Arms in Restoration England, at 11 (Mary Ingraham = Bunting=20 Institute, Radcliffe College 1980).

21. Thomas Macaulay, The History = of England=20 from the Accession of Charles II, Vol. II at 137 (London, = 1856).

22. Phillip, Earl of Hardwicke, = Miscellaneous=20 State Papers from 1501-1726, vol. 2 at 407-17 (London, = 1778).

23. J. R. Western, Monarchy and = Revolution:=20 The English State in the 1680's, at 339 (Totowa, N.J., = 1972).

24. Journal of the House of = Commons from=20 December 26, 1688 to October 26, 1693, at 29. (London, 1742). The Bill = of Rights=20 was ultimately enacted in this form. 1 Gul. and Mar. Sess., 2, c. 2=20 (1689).

25. Joyce Malcolm, supra, at=20 16.

26. William Hening, The Statutes = at Large:=20 Being a Collection of All the Laws of Virginia from the First Session of = the=20 Legislature in 1619, at pp. 127, 173-74 (New York, 1823).

27. Id.

28. William Brigham, The Compact = with the=20 Charter and Laws of the Colony of New Plymouth, 31, 76 (Boston,=20 1836).

29. Oliver Dickerson, ed., Boston = Under=20 Military Rule, 61, 79 (Boston, 1936).

30. Steven Patterson, Political = Parties in=20 Revolutionary Massachusetts, at 103 (University of Wisconsin Press,=20 1973).

31. See Sprecher, The Lost = Amendment, 51=20 A.B.A.J. 554, 665 (1965).

32. The most extensive studies of = these militia=20 proposals are John Macauly Palmer, Washington, Lincoln, Wilson: Three = War=20 Statesmen (New York, 1930); Frederick Stern, Citizen Army = (New York,=20 1957); John Mahon, The American Militia: Decade of Decision = 1789-1800=20 (Univ. of Florida, 1960).

33. Merrill Jensen, ed., The = Documentary of=20 History of the Ratification of the Constitution, vol. 3 at 378 = (Madison,=20 Wisc.)

34. Id., vol. 2 at = 508.

35. Walter Bennet, ed., Letters = from the=20 Federal Farmer to the Republican, at 21, 22, 124 (Univ. of Alabama = Press,=20 1975).

36. Debates and other Proceedings = of the=20 Convention of Virginia, . . . taken in shorthand by David Robertson = of=20 Petersburg, at 271, 275 (2nd ed. Richmond, 1805).

37. Noah Webster, "An Examination = into the=20 Leading Principles of the Federal States, at 56 (New York, 1888). =

38. Jonathan Elliot, ed., Debates = in the=20 Several State Conventions on the Adoption of the Federal = Constitution, vol.=20 2 at 97 (2nd ed., 1888).

39. Merril Jensen, supra, = vol. 2 at=20 597-98.

40. Debates and Proceeding at the = Convention=20 of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, = eds.,=20 Boston, 1850); 2 B. Schwartz, the Bill of Rights 675 (1971).

41. Documents Illustrative of the = Formation=20 of the Union of the American States, at 1026 (Washington, D.C., GPO, = 1927).

42. Id. at 1030.

43. Annals of Congress 434=20 (1789).

44. St. George Tucker, ed., Blackstone's=20 Commentaries, Volume 1 at 143 n. 40, 41 (Philadelphia, = 1803).=20

45. William Rawle, A View of the=20 Constitution 125-6 (2nd ed., Philadelphia, 1803).

46. Joseph Story, Commentaries on the=20 Constitution, vol. 2 at 746 (1833).

47. Act of May 8, 1792; Second = Cong., First=20 Session, ch. 33.

48. Bliss vs. Commonwealth, = 12 Ken. (2=20 Litt.) 90, 92 (1822).

49. State v. Mitchell, (3 = Black.)=20 229.

50. State v. Reid, 1 Ala. = 612, 35 Am.=20 Dec. 44 (1840).

51. State v. Buzzard, 4 Ark. = 18, 27, 36=20 (1842). The Arkansas Constitutional provision at issue was narrower than = the=20 second amendment, as it protected keeping and bearing arms "for the = common=20 defense." Id. at 34.

52. Nunn v. State, 1 Ga. 243, = 251=20 (1846).

53. Dred Scott v. Sanford, 60 = U.S. 691,=20 705.

54. The most comprehensive work in = this field of=20 constitutional law is Steven Halbrook, The Jurisprudence of the = Second and=20 Fourteenth Amendments (Institute for Humane Studies, Menlo Park, = California,=20 1979), reprinted in 4 George Mason L. Rev. 1 (1981).

55. Cong. Globe, 39th Congress, 1st = Sess., pt.=20 1, p. 474 (Jan. 29, 1866).

56. Id. at 478.

57. H.R. Rep. No. 37, 41st Cong., 3d = sess., p. 3=20 (1871).

58. See generally Halbrook, = supra, at=20 42-62.

59. Slaughterhouse Cases, 83 U.S. 36 = (L873).

60. United States v. = Cruikshank, 92 U.S.=20 542 (1876).

61. Presser v. Illinois, 116 = U.S. 252=20 (1886).

62. Miller v. Texas, 153 U.S. = 535=20 (1894).

63. United States v. Miller, = 307 U.S. 175=20 (1939).

64. Id. at 178, = 179.

65. H.R. Report No. 141, 73d Cong., = 1st sess. at=20 2-5 (1933).

APPENDIX

Case Law

The United States Supreme Court has only three times commented upon = the=20 meaning of the second amendment to our constitution. The first comment, = in Dred=20 Scott, indicated strongly that the right to keep and bear arms was an = individual=20 right; the Court noted that, were it to hold blacks to be entitled to = equality=20 of citizenship, they would be entitled to keep and carry arms wherever = they=20 went. The second, in Miller, indicated that a court cannot take judicial = notice=20 that a short-barrelled shotgun is covered by the second amendment =97 = but the=20 Court did not indicate that National Guard status is in any way required = for=20 protection by that amendment, and indeed defined "militia" to include = all=20 citizens able to bear arms. The third, a footnote in Lewis v. United = States,=20 indicated only that "these legislative restrictions on the use of = firearms" =97 a=20 ban on possession by felons =97 were permissable [sic]. But since felons = may=20 constitutionally be deprived of many of the rights of citizens, = including that=20 of voting, this dicta reveals little. These three comments constitute = all=20 significant explanations of the scope of the second amendment advanced = by our=20 Supreme Court. The case of Adam v. Williams has been cited as contrary = to the=20 principle that the second amendment is an individual right. In fact, = that=20 reading of the opinion comes only in Justice Douglas's dissent from the = majority=20 ruling of the Court.

The appendix which follows represents a listing of twenty-one = American=20 decisions, spanning the period from 1822 to 1981, which have analyzed = right to=20 keep and bear arms provisions in the light of statutes ranging from = complete=20 bans on handgun sales to bans on carrying of weapons to regulation of = carrying=20 by permit systems. Those decisions not only explained the nature of such = a=20 right, but also struck down legislative restrictions as violative of it, = are=20 designated by asterisks.

20TH CENTURY CASES

1. State v. Blocker, 291 Or. 255, =97 =97 =97 P. 2d =97 =97 = =97 (1981).=20
"The statue is written as a total proscription of the mere = possession of=20 certain weapons, and that mere possession, insofar as a billy is = concerned, is=20 constitutionally protected."=20

"In these circumstances, we conclude that it is proper for us = to=20 consider defendant's 'overbreadth' attack to mean that the statute = swept so=20 broadly as to infringe rights that it could not reach, which in the = setting=20 means the right to possess arms guaranteed by sec 27."=20
2. State v. Kessler, 289 Or. 359, 614 P. 2d 94, at 95, at = 98=20 (1980).=20
"We are not unmindful that there is current controversy over the = wisdom of=20 a right to bear arms, and that the original motivations for such a = provision=20 might not seem compelling if debated as a new issue. Our task, = however, in=20 construing a constitutional provision is to respect the principles = given the=20 status of constitutional guarantees and limitations by the drafters; = it is not=20 to abandon these principles when this fits the needs of the moment."=20

"Therefore, the term 'arms' as used by the drafters of the=20 constitutions probably was intended to include those weapons used by = settlers=20 for both personal and military defense. The term 'arms' was not = limited to=20 firearms, but included several handcarried weapons commonly used for = defense.=20 The term 'arms' would not have included cannon or other heavy ordnance = not=20 kept by militiamen or private citizens."=20
3. Motley v. Kellogg, 409 N.E. 2d 1207, at 1210 (Ind. App. = 1980)=20 (motion to transfer denied 1-27-1981).=20
"[N]ot making applications available at the chief's office = effectively=20 denied members of the community the opportunity to obtain a gun permit = and=20 bear arms for their self-defense."=20
4. Schubert v. DeBard, 398 N.E. 2d 1339, at 1341 (Ind. App. = 1980)=20 (motion to transfer denied 8-28-1980).=20
"We think it clear that our constitution provides our citizenry = the right=20 to bear arms for their self- defense."=20
5. Taylor v. McNeal, 523 S.W. 2d 148, at 150 (Mo. App. = 1975)=20
"The pistols in question are not contraband. * * * Under Art. I, = sec 23,=20 Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and = bear arms=20 in defense of his home, person, and property, with the limitation that = this=20 section shall not justify the wearing of concealed arms."=20
6. City of Lakewood v. Pillow, 180 Colo. 20, 501 P. 2d 744, = at 745=20 (en banc 1972).=20
"As an example, we note that this ordinance would prohibit = gunsmiths,=20 pawnbrokers and sporting goods stores from carrying on a substantial = part of=20 their business. Also, the ordinance appears to prohibit individuals = from=20 transporting guns to and from such places of business. Furthermore, it = makes=20 it unlawful for a person to possess a firearm in a vehicle or in a = place of=20 business for the purpose of self-defense. Several of these activities = are=20 constitutionally protected. Colo. Const. art. II, sec 13."=20
7. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P. 2d 737, = at 738=20 (N.M. App. 1971).=20
"It is our opinion that an ordinance may not deny the people the=20 constitutionally guaranteed right to bear arms, and to that extent the = ordinance under consideration is void."=20
8. State v. Nickerson, 126 Mt. 157, 247 P. 2d 188, at 192 = (1952).=20
"The law of this jurisdiction accords to the defendant the right = to keep=20 and bear arms and to use same in defense of his own home, his person = and=20 property."=20
9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 = (1950).=20
"The second amendment to the constitution of the United States = provides=20 the right of the people to keep and bear arms shall not be infringed. = This of=20 course does not prevent the enactment of a law against carrying = concealed=20 weapons, but it does indicate it should be kept in mind, in the = construction=20 of a statue of such character, that it is aimed at persons of criminal = instincts, and for the prevention of crime, and not against use in the = protection of person or property."=20
10. People v. Nakamura, 99 Colo. 262, at 264, 62 P. 2d 246 = (en banc=20 1936).=20
"It is equally clear that the act wholly disarms aliens for all = purposes.=20 The state . . . cannot disarm any class of persons or deprive them of = the=20 right guaranteed under section 13, article II of the Constitution, to = bear=20 arms in defense of home, person and property. The guaranty thus = extended is=20 meaningless if any person is denied the right to possess arms for such = protection."=20
11. Glasscock v. City of Chattanooga, 157 Tenn. 518, at = 520, 11=20 S.W. 2d 678 (1928).=20
"There is no qualification of the prohibition against the carrying = of a=20 pistol in the city ordinance before us but it is made unlawful 'to = carry on or=20 about the person any pistol,' that is, any sort of pistol in any sort = of=20 manner. *** [W]e must accordingly hold the provision of this ordinance = as to=20 the carrying of a pistol invalid."=20
12. People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 = (1922).=20
"The provision in the Constitution granting the right to all = persons to=20 bear arms is a limitation upon the right of the Legislature to enact = any law=20 to the contrary. The exercise of a right guaranteed by the = Constitution cannot=20 be made subject to the will of the sheriff."=20
13. State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 = (1921).=20
"We are of the opinion, however, that 'pistol' ex vi termini is = properly=20 included within the word 'arms,' and that the right to bear such arms = cannot=20 be infringed. The historical use of pistols as 'arms' of offense and = defense=20 is beyond controversy."=20

"The maintenance of the right to bear arms is a most essential = one to=20 every free people and should not be whittled down by technical = constructions."=20
14. State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 = (1903).=20
"The people of the state have a right to bear arms for the defense = of=20 themselves and the state. *** The result is that Ordinance No. 10, so = far as=20 it relates to the carrying of a pistol, is inconsistent with and = repugnant to=20 the Constitution and the laws of the state, and it is therefore to = that=20 extent, void."=20
15. In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902). =
"The second amendment to the federal constitution is in the = following=20 language: 'A well-regulated militia, being necessary to the security = of a free=20 state, the right of the people to keep and bear arms, shall not be = infringed.'=20 The language of section 11, article I of the constitution of Idaho, is = as=20 follows: 'The people have the right to bear arms for their security = and=20 defense, but the legislature shall regulate the exercise of this right = by=20 law.' Under these constitutional provisions, the legislature has no = power to=20 prohibit a citizen from bearing arms in any portion of the state of = Idaho,=20 whether within or without the corporate limits of cities, towns, and=20 villages."

19TH CENTURY CASES

16. Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, = at 54=20 (1878).=20
"If cowardly and dishonorable men sometimes shoot unarmed men with = army=20 pistols or guns, the evil must be prevented by the penitentiary and = gallows,=20 and not by a general deprivation of constitutional privilege."=20
17. Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 = (1878).=20
"We believe that portion of the act which provides that, in case = of=20 conviction, the defendant shall forfeit to the county the weapon of = weapons so=20 found on or about his person is not within the scope of legislative = authority.=20 * * * One of his most sacred rights is that of having arms for his own = defence=20 and that of the State. This right is one of the surest safeguards of = liberty=20 and self-preservation."=20
18. Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 = (1871).=20
"The passage from Story shows clearly that this right was = intended, as we=20 have maintained in this opinion, and was guaranteed to and to be = exercised and=20 enjoyed by the citizen as such, and not by him as a soldier, or in = defense=20 solely of his political rights."=20
19. Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).=20
"The right of the people to bear arms shall not be infringed." The = right=20 of the whole people, old and young, men, women and boys, and not = militia only,=20 to keep and bear arms of every description, and not such merely as are = used by=20 the militia, shall not be infringed, curtailed, or broken in upon, in = the=20 smallest degree; and all this for the important end to be attained: = the=20 rearing up and qualifying a well- regulated militia, so vitally = necessary to=20 the security of a free State."=20
20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833).=20
"But suppose it to be assumed on any ground, that our ancestors = adopted=20 and brought over with them this English statute, [the statute of = Northampton,]=20 or portion of the common law, our constitution has completely = abrogated it; it=20 says, 'that the freemen of this State have a right to keep and bear = arms for=20 their common defence.' Article II, sec. 26. * * * By this clause of = the=20 constitution, an express power is given and secured to all the free = citizens=20 of the State to keep and bear arms for their defence, without any=20 qualification whatever as to their kind or nature; and it is = conceived, that=20 it would be going much too far, to impair by construction or = abridgement a=20 constitutional privilege, which is so declared; neither, after so = solemn an=20 instrument hath said the people may carry arms, can we be permitted to = impute=20 to the acts thus licensed, such a necessarily consequent operation as = terror=20 to the people to be incurred thereby; we must attribute to the framers = of it,=20 the absence of such a view."=20
21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and = 93, 13=20 Am. Dec. 251 (1822).=20
"For, in principle, there is no difference between a law = prohibiting the=20 wearing concealed arms, and a law forbidding the wearing such as are = exposed;=20 and if the former be unconstitutional, the latter must be so = likewise."=20

"But it should not be forgotten, that it is not only a part of = the=20 right that is secured by the constitution; it is the right entire and=20 complete, as it existed at the adoption of the constitution; and if = any=20 portion of that right be impaired, immaterial how small the part may = be, and=20 immaterial the order of time at which it be done, it is equally = forbidden by=20 the constitution."

The following represents a list of twelve scholarly articles which = have dealt=20 with the subject of the right to keep and bear arms as reflected in the = second=20 amendment to the Constitution of the United States. The scholars who = have=20 undertaken this research range from professors of law, history and = philosophy to=20 a United States Senator. All have concluded that the second amendment is = an=20 individual right protecting American citizens in their peaceful use of=20 firearms.

BIBLIOGRAPHY

ENFORCEMENT OF FEDERAL FIREARMS LAWS FROM THE
PERSPECTIVE OF THE = SECOND=20 AMENDMENT

Federal involvement in firearms possession and transfer was not = significant=20 prior to 1934, when the National Firearms Act was adopted. The National = Firearms=20 Act as adopted covered only fully automatic weapons (machine guns and = submachine=20 guns) and rifles and shotguns whose barrel length or overall length fell = below=20 certain limits. Since the Act was adopted under the revenue power, sale = of these=20 firearms was not made subject to a ban or permit system. Instead, each = transfer=20 was made subject to a $200 excise tax, which must be paid prior to = transfer; the=20 identification of the parties to the transfer indirectly accomplished a=20 registration purpose.

The 1934 Act was followed by the Federal Firearms Act of 1938, which = placed=20 some limitations upon sale of ordinary firearms. Persons engaged in the = business=20 of selling those firearms in interstate commerce were required to obtain = a=20 Federal Firearms License, at an annual cost of $1, and to maintain = records of=20 the name and address of persons to whom they sold firearms. Sales to = persons=20 convicted of violent felonies were prohibited, as were interstate = shipments to=20 persons who lacked the permits required by the law of their state.

Thirty years after adoption of the Federal Firearms Act, the Gun = Control Act=20 of 1968 worked a major revision of federal law. The Gun Control Act was = actually=20 a composite of two statutes. The first of these, adopted as portions of = the=20 Omnibus Crime and Safe Streets Act, imposed limitations upon imported = firearms,=20 expanded the requirement of dealer licensing to cover anyone "engaged in = the=20 business of dealing" in firearms, whether in interstate or local = commerce, and=20 expanded the recordkeeping obligations for dealers. It also imposed a = variety of=20 direct limitations upon sales of handguns. No transfers were to be = permitted=20 between residents of different states (unless the recipient was a = federally=20 licensed dealer), even where the transfer was by gift rather than sale = and even=20 where the recipient was subject to no state law which could have been = evaded.=20 The category of persons to whom dealers could not sell was expanded to = cover=20 persons convicted of any felony (other than certain business-related = felonies=20 such as antitrust violations), persons subject to a mental commitment = order or=20 finding of mental incompetence, persons who were users of marijuana and = other=20 drugs, and a number of other categories. Another title of the Act = defined=20 persons who were banned from possessing firearms. Paradoxically, these = classes=20 were not identical with the list of classes prohibited from purchasing = or=20 receiving firearms.

The Omnibus Crime and Safe Streets Act was passed on June 5, 1968, = and set to=20 take effect in December of that year. Barely two weeks after its = passage,=20 Senator Robert F. Kennedy was assassinated while campaigning for the = presidency.=20 Less that a week after his death, the second bill which would form part = of the=20 Gun Control Act of 1968 was introduced in the House. It was reported out = of=20 Judiciary ten days later, out of Rules Committee two weeks after that, = and was=20 on the floor barely a month after its introduction. the second bill = worked a=20 variety of changes upon the original Gun Control Act. Most = significantly, it=20 extended to rifles and shotguns the controls which had been imposed = solely on=20 handguns, extended the class of persons prohibited from possessing = firearms to=20 include those who were users of marijuana and certain other drugs, = expanded=20 judicial review of dealer license revocations by mandating a de novo = hearing=20 once an appeal was taken, and permitted interstate sales of rifles and = shotguns=20 only where the parties resided in contiguous states, both of which had = enacted=20 legislation permitting such sales. Similar legislation was passed by the = Senate=20 and a conference of the Houses produced a bill which was essentially a=20 modification of the House statute. This became law before the Omnibus = Crime=20 Control and Safe Streets Act, and was therefore set for the same = effective=20 date.

Enforcement of the 1968 Act was delegated to the Department of the = Treasury,=20 which had been responsible for enforcing the earlier gun legislation. = This=20 responsibility was in turn given to the Alcohol and Tobacco Tax Division = of the=20 Internal Revenue Service. This division had traditionally devoted itself = to the=20 pursuit of illegal producers of alcohol; at the time of enactment of the = Gun=20 Control Act, only 8.3 percent of its arrests were for firearms = violations.=20 Following enactment of the Gun Control Act the Alcohol and Tobacco Tax = Division=20 was retitled the Alcohol, Tobacco and Firearms Division of the IRS. By = July,=20 1972 it had nearly doubled in size and became a complete Treasury bureau = under=20 the name of Bureau of Alcohol, Tobacco and Firearms.

The mid-1970's saw rapid increases in sugar prices, and these in turn = drove=20 the bulk of the "moonshiners" out of business. Over 15,000 illegal = distilleries=20 had been raided in 1956; but by 1976 this had fallen to a mere 609. The = BATF=20 thus began to devote the bulk of its efforts to the area of firearms law = enforcement.

Complaint regarding the techniques used by the Bureau in an effort to = generate firearms cases led to hearings before the Subcommittee on = Treasury,=20 Post Office, and General Appropriations of the Senate Appropriations = Committee=20 in July 1979 and April 1980, and before the Subcommittee on the = Constitution of=20 the Senate Judiciary Committee in October 1980. At these hearings = evidence was=20 received from various citizens who had been charged by BATF, from = experts who=20 had studied the BATF, and from officials of the Bureau itself.

Based upon these hearings, it is apparent that enforcement tactics = made=20 possible by current federal firearms laws are constitutionally, legally, = and=20 practically reprehensible. Although Congress adopted the Gun Control Act = with=20 the primary object of limiting access of felons and high-risk groups to=20 firearms, the overbreadth of the law has led to neglect of precisely = this area=20 of enforcement. For example the Subcommittee on the Constitution = received=20 correspondence from two members of the Illinois Judiciary, dated in = 1980,=20 indicating that they had been totally unable to persuade BATF to accept = cases=20 against felons who were in possession of firearms including sawed-off = shotguns.=20 The Bureau's own figures demonstrate that in recent years the percentage = of its=20 arrests devoted to felons in possession and persons knowingly selling to = them=20 have dropped from 14 percent down to 10 percent of their firearms cases. = To be=20 sure, genuine criminals are sometimes prosecuted under other sections of = the=20 law. Yet, subsequent to these hearings, BATF stated that 55 percent of = its gun=20 law prosecutions overall involve persons with no record of a felony = conviction,=20 and a third involve citizens with no prior police contact at all.

The Subcommittee received evidence that the BATF has primarily = devoted its=20 firearms enforcement efforts to the apprehension, upon technical malum=20 prohibitum charges, of individuals who lack all criminal intent and = knowledge.=20 Agents anxious to generate an impressive arrest and gun confiscation = quota have=20 repeatedly enticed gun collectors into making a small number of sales = =97 often as=20 few as four =97 from their personal collections. Although each of the = sales was=20 completely legal under state and federal law, the agents then charged = the=20 collector with having "engaged in the business" of dealing in guns = without the=20 required license. Since existing law permits a felony conviction upon = these=20 charges even where the individual has no criminal knowledge or intent = numerous=20 collectors have been ruined by a felony record carrying a potential = sentence of=20 five years in federal prison. Even in cases where the collectors secured = acquittal, or grand juries failed to indict, or prosecutors refused to = file=20 criminal charges, agents of the Bureau have generally confiscated the = entire=20 collection of the potential defendant upon the ground that he intended = to use it=20 in that violation of the law. In several cases, the agents have refused = to=20 return the collection even after acquittal by jury.

The defendant, under existing law is not entitled to an award of = attorney's=20 fees, therefore, should he secure return of his collection, an = individual who=20 has already spent thousands of dollars establishing his innocence of the = criminal charges is required to spend thousands more to civilly prove = his=20 innocence of the same acts, without hope of securing any redress. This = of=20 course, has given the enforcing agency enormous bargaining power in = refusing to=20 return confiscated firearms. Evidence received by the Subcommittee = related the=20 confiscation of a shotgun valued at $7,000. Even the Bureau's own = valuations=20 indicate that the value of firearms confiscated by their agents is over = twice=20 the value which the Bureau has claimed is typical of "street guns" used = in=20 crime. In recent months, the average value has increased rather than = decreased,=20 indicating that the reforms announced by the Bureau have not in fact = redirected=20 their agents away from collector's items and toward guns used in = crime.

The Subcommittee on the Constitution has also obtained evidence of a = variety=20 of other misdirected conduct by agents and supervisors of the Bureau. In = several=20 cases, the Bureau has sought conviction for supposed technical = violations based=20 upon policies and interpretations of law which the Bureau had not = published in=20 the Federal Register, as required by 5 U.S.C. Sec 552. For instance, = beginning=20 in 1975, Bureau officials apparently reached a judgment that a dealer = who sells=20 to a legitimate purchaser may nonetheless be subject to prosecution or = license=20 revocation if he knows that that individual intends to transfer the = firearm to a=20 nonresident or other unqualified purchaser. This position was never = published in=20 the Federal Register and is indeed contrary to indications which Bureau=20 officials had given Congress, that such sales were not in violation of = existing=20 law. Moreover, BATF had informed dealers that an adult purchaser could = legally=20 buy for a minor, barred by his age from purchasing a gun on his own. = BATF made=20 no effort to suggest that this was applicable only where the barrier was = one of=20 age. Rather than informing the dealers of this distinction, Bureau = agents set=20 out to produce mass arrests upon these "straw man" sale charges, sending = out=20 undercover agents to entice dealers into transfers of this type. The = first major=20 use of these charges, in South Carolina in 1975, led to 37 dealers being = driven=20 from business, many convicted on felony charges. When one of the judges = informed=20 Bureau officials that he felt dealers had not been fairly treated and = given=20 information of the policies they were expected to follow, and refused to = permit=20 further prosecutions until they were informed, Bureau officials were = careful to=20 inform only the dealers in that one state and even then complained in = internal=20 memoranda that this was interfering with the creation of the cases. When = BATF=20 was later requested to place a warning to dealers on the front of the = Form 4473,=20 which each dealer executes when a sale is made, it instead chose to = place the=20 warning in fine print upon the back of the form, thus further concealing = it from=20 the dealer's sight.

The Constitution Subcommittee also received evidence that the Bureau = has=20 formulated a requirement, of which dealers were not informed that = requires a=20 dealer to keep official records of sales even from his private = collection. BATF=20 has gone farther than merely failing to publish this requirement. At one = point,=20 even as it was prosecuting a dealer on the charge (admitting that he had = no=20 criminal intent), the Director of the Bureau wrote Senator S. I. = Hayakawa to=20 indicate that there was no such legal requirement and it was completely = lawful=20 for a dealer to sell from his collection without recording it. Since = that date,=20 the Director of the Bureau has stated that that is not the Bureau's = position and=20 that such sales are completely illegal; after making that statement, = however, he=20 was quoted in an interview for a magazine read primarily by licensed = firearms=20 dealers as stating that such sales were in fact legal and permitted by = the=20 Bureau. In these and similar areas, the Bureau has violated not only the = dictates of common sense, but of 5 U.S.C. Sec 552, which was intended to = prevent=20 "secret lawmaking" by administrative bodies.

These practices, amply documented in hearings before this = Subcommittee, leave=20 little doubt that the Bureau has disregarded rights guaranteed by the=20 constitution and laws of the United States.

It has trampled upon the second amendment by chilling exercise of the = right=20 to keep and bear arms by law-abiding citizens.

It has offended the fourth amendment by unreasonably searching and = seizing=20 private property.

It has ignored the Fifth Amendment by taking private property without = just=20 compensation and by entrapping honest citizens without regard for their = right to=20 due process of law.

The rebuttal presented to the Subcommittee by the Bureau was utterly=20 unconvincing. Richard Davis, speaking on behalf of the Treasury = Department,=20 asserted vaguely that the Bureau's priorities were aimed at prosecuting = willful=20 violators, particularly felons illegally in possession, and at = confiscating only=20 guns actually likely to be used in crime. He also asserted that the = Bureau has=20 recently made great strides toward achieving these priorities. No = documentation=20 was offered for either of these assertions. In hearings before BATF's=20 Appropriations Subcommittee, however, expert evidence was submitted = establishing=20 that approximately 75 percent of BATF gun prosecutions were aimed at = ordinary=20 citizens who had neither criminal intent nor knowledge, but were enticed = by=20 agents into unknowing technical violations. (In one case, in fact, the=20 individual was being prosecuted for an act which the Bureau's acting = director=20 had stated was perfectly lawful.) In those hearings, moreover, BATF = conceded=20 that in fact (1) only 9.8 percent of their firearm arrests were brought = on=20 felons in illicit possession charges; (2) the average value of guns = seized was=20 $116, whereas BATF had claimed that "crime guns" were priced at less = than half=20 that figure; (3) in the months following the announcement of their new=20 "priorities", the percentage of gun prosecutions aimed at felons had in = fact=20 fallen by a third, and the value of confiscated guns had risen. All this = indicates that the Bureau's vague claims, both of focus upon gun-using = criminals=20 and of recent reforms, are empty words.

In light of this evidence, reform of federal firearm laws is = necessary to=20 protect the most vital rights of American citizens. Such legislation is = embodied=20 in S. 1030. That legislation would require proof of a willful violation = as an=20 element of a federal gun prosecution, forcing enforcing agencies to = ignore the=20 easier technical cases and aim solely at the intentional breaches. It = would=20 restrict confiscation of firearms to those actually used in an offense, = and=20 require their return should the owner be acquitted of the charges. By = providing=20 for award of attorney's fees in confiscation cases, or in other cases if = the=20 judge finds charges were brought without just basis or from improper = motives,=20 this proposal would be largely self-enforcing. S. 1030 would enhance = vital=20 protection of constitutional and civil liberties of those Americans who = choose=20 to exercise their Second Amendment right to keep and bear arms.

[Other sections omitted.]

<= /TR>
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Original date: 1999 July 1 =97 Updated: = 2002 May=20 17		 What you can = do to=20 help
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