Testimony on the Second Amendment Before the Subcommittee on the
Constitution et al. of the U.S. Senate Judiciary Committee, Sept. 23,
1998, by Eugene Volokh, UCLA Law School
Dear Mr. Chairman and Members of the Committee:
Eight years ago, I got into an argument with a nonlawyer
acquaintance about the Second Amendment. The Amendment, this person
fervently announced, clearly protects an individual right. Not so, I
argued to him, thinking him to be something of a blowhard and even a
bit of a kook.
Three years ago, I discovered, to my surprise and mild chagrin,
that this supposed kook was entirely right. In preparing to teach a
law school seminar on firearms regulation (one of the only about half a
dozen such classes that I know of at U.S. law schools), I found that
the historical evidence -- much of which I set forth verbatim in the
Appendix -- overwhelmingly points to one and only one conclusion: The
Second Amendment does indeed secure an individual right to keep and
bear arms.
1. The Text of the Amendment Refers to an Individual Right
The Second Amendment, like the First, Fourth, and Ninth Amendments,
refers to a "right of the people," not a right of the states or a right
of the National Guard. The First Amendment guarantees the people's
right to assemble; the Fourth Amendment protects the people's right to
be free from unreasonable searches and seizures; the Ninth Amendment
refers to the people's unenumerated rights. These rights are clearly
individual -- they protect "the right of the people" by protecting the
right of each person. This strongly suggests that the similarly-worded
Second Amendment likewise secures an individual right. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC3 for
text of the relevant original sources.)
What about the seemingly odd two-clause construction, which some
commentators have called "unusual," "special," and "nearly unique"? It
turns out that there's nothing odd about it at all. During the Framing
Era, dozens of individual rights provisions in state constitutions were
structured the same way, providing a justification clause explaining
the right, and then an operative clause securing the right. The 1842
Rhode Island Constitution's Free Press Clause, for instance, reads
The liberty of the press being essential to the security of freedom
in a state, any person may publish his sentiments of any subject,
being responsible for the abuse of that liberty . . . .
Just as with the Second Amendment, the second clause secures a right,
while the first justifies it to the public. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC4)
And the two clauses of the Amendment are entirely consistent. The
second clause guarantees a "right of the people," which is the right of
each individual. The first clause explains that this right helps
further a "well-regulated militia," a legal term of art that means "the
body of the people capable of bearing arms" (here I quote from the New
York Ratifying Convention's proposal that eventually became the Second
Amendment) -- the entire armed citizenry, not some small National
Guard- type unit.
The current Militia Act, enacted in 1956 and derived from the
original 1792 Militia Act, defines the "militia" as including all
able-bodied male citizens from 17 to 45; given the Court's sex equality
jurisprudence, I feel comfortable saying that every able-bodied citizen
from age 17 to 45, male or female, is a member of the militia. This is
quite consistent with the second clause's securing an individual right
to every person. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC2 and
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC32)
2. Contemporaneous Constitutions and Commentaries Unanimously Treat
the Right as an Individual Right
Contemporaneous evidence from the late 1700s and 1800s unanimously
supports the individual rights reading of the text. It's widely agreed
that the Second Amendment right to keep and bear arms was an expanded
version of a similar right in the 1688 English Bill of Rights.
England, of course, didn't have states, so the English right couldn't
have been a states' right; Sir William Blackstone, whose 1765
Commentaries were tremendously influential in Revolutionary Era
America, described the right as a "right of the subject," an obviously
individual rights characterization. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC6)
Many early state Bills of Rights also protected the right to keep
and bear arms; since these rights were protections *against* state
governments, they surely must have protected individuals, not the
states themselves. And many of the constitutions made this quite
explicit. The 1790 Pennsylvania and the 1792 Kentucky Constitutions
described the right as "the right of the citizens"; the 1796 Tennessee
Constitution spoke of "the right of the freemen"; the 1817 Mississippi,
1818 Connecticut, 1819 Maine, and 1819 Alabama Constitution
specifically referred to the right of "every citizen."
The 1776 Pennsylvania, 1777 Vermont, 1802 Ohio, 1816 Indiana, and
1820 Missouri Constitutions spoke of "the people['s] right to bear arms
for the defence of themselves," referring to the people individually
("themselves") rather than collectively ("itself"). Throughout the
1800s, these unambiguously individual rights were seen as directly
analogous to the Second Amendment. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC1)
The same goes for all the notable constitutional commentators of
the 1800s. St. George Tucker (1803) treated the Second Amendment right
as equivalent to Blackstone's "right of the subject"; William Rawle
(1829) did likewise. Justice Joseph Story (1833 and 1840) called it a
"right of the citizens." Thomas Cooley (1880 and 1898) took exactly the
same individual right view; so did the 1866 Freedmen's Bureau Act,
which specifically secured to "all the citizens" "the constitutional
right to bear arms" as part of their "personal liberty." A recent
exhaustive study reveals that there was exactly *one* statement in the
1800s cases or commentaries supporting the collective rights view, a
concurring opinion in an 1842 Arkansas state court case. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC7 and
following.)
These commentators also make clear exactly what purpose the right
was thought to serve: Blackstone, Tucker, Story, and Cooley unanimously
agree that private firearms ownership was meant as a deterrent to
government tyranny. In the words of Justice Story,
The right of the citizens to keep and bear arms has justly been
considered, as the palladium of the liberties of a republic; since
it offers a strong moral check against the usurpation and arbitrary
power of rulers; and will generally, even if these are successful
in the first instance, enable the people to resist and triumph over
them.
A chilling thought, perhaps, and one that may not be in keeping with
the temper of our times -- but the Framers thought that leaving
governments (state or federal) with a monopoly on armed power was even
a more chilling prospect. Though the Second Amendment grants no right
to revolt with impunity against tyranny (no constitution can do that),
it does secure private ownership of firearms as a deterrent to such
tyranny; this is the unanimous judgment of all the early sources. /*/
(See http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC8
and http://www.law.ucla.edu/faculty/volokh/beararms/FEDERALI.HTM#FED46)
3. The U.S. Supreme Court Cases Do Not Treat the Right as a Collective
Right
The U.S. Supreme Court has said little about the Second Amendment,
but it has certainly not said that the Amendment secures only a
collective right.
Throughout the Court's history, the Justices have mentioned the
Second Amendment, usually in passing, in 27 opinions. In 22 of these
27, the Justices quoted or paraphrased only "the right of the people to
keep and bear arms" language, without even mentioning the Militia
Clause. (See
http://www.law.ucla.edu/faculty/volokh/beararms/testimon.ssi#TOC.VI.D)
One of the remaining five cases -- and the only extended
20th-century discussion of the right -- is United States v. Miller
(1939), which held that the right extended only to weapons that were
rationally related to the preservation of the militia. But the Court
emphatically did not hold that the right belonged only to the state or
the National Guard. Rather, it reaffirmed that the "militia" referred
to the entire armed citizenry, and considered on the merits a lawsuit
that was brought by an individual (Miller), not by a state. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC11)
The only Supreme Court case that leans in the collective rights
direction is Lewis v. United States (1980), which summarily rejected an
ex-felon's claim of a right to possess a firearm, in passing citing
some lower court cases that took a collective rights view. But Lewis
could equally well be explained as concluding only that *ex-felons*
don't have a right to keep and bear arms (something that's also been
held in the many states whose constitutions unambiguously guarantee an
individual right to keep and bear arms). (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC27)
In any event, if one relies on passing mentions, Casey v. Planned
Parenthood (1992) (quoting Justice Harlan) in passing described liberty
as including "[freedom from] the taking of property; the freedom of
speech, press, and religion; the right to keep and bear arms; the
freedom from unreasonable searches and seizures; and so on" -- a
description that treats the right to keep and bear arms as an
individual right on par with the other individual rights. (See
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm#TOC29)
Despite all the above evidence, the federal courts of appeal have
unanimously subscribed to the states' right approach, though there are
a few recent hints to the contrary in some opinions. If the historical
or textual evidence were in equipoise, and if the cases dealt carefully
with the evidence and explained why the pro-states'-right evidence was
more persuasive than the pro-individual-right evidence, then perhaps we
might defer to these courts' views.
But when the lower courts' decisions are contrary to the unanimous
weight of the evidence, and do not really confront this evidence but
rely almost entirely on bald assertions or on citations to other lower
court decisions, it seems to me that we must respectfully say that the
lower courts are mistaken.
4. The Precise Scope of the Right Is a Matter of Considerable Debate
While the evidence that the right is an individual right is
extremely strong, the precise scope of the right is a matter of
considerable debate. This of course is true of all individual rights:
Everyone agrees that the First Amendment, the Fourth Amendment, and
other provisions secure individual rights, but reasonable minds differ
on exactly what speech the First Amendment protects and exactly what
searches the Fourth Amendment prohibits.
Thus, recognizing that the Second Amendment secures an individual
right tells us little about most moderate gun controls, for instance
background checks, waiting periods, or modest restrictions on the kinds
of brands that may be marketed. I don't know how these laws should be
treated; I suspect that many would be upheld, like many modest speech
restrictions are upheld despite the existence of the First Amendment.
But our concern about these problems can't blind us to the clear
verdict of the constitutional text and the constitutional history: The
Framers of the Bill of Rights (and of the Fourteenth Amendment) saw the
right to keep and bear arms as an individual right, entitled to the
same sort of dignity and protection as the freedom of speech, the
privacy of the home, the right to trial by jury, and our other
constitutionally secured protections.
As the Court said when defending another often unpopular right --
the privilege against self-incrimination --
If it be thought that [a right] is outmoded in the conditions of
this modern age, then the thing to do is to take it out of the
Constitution [by constitutional amendment], not to whittle it down
by the subtle encroachments of judicial opinion.
Constitutional rights may be respected, repealed, or modified; but they
must never be ignored.
* * *
/*/ All the text above is part of the written testimony, except
for the last paragraph of Part 2. At the hearing, the material in this
paragraph was substantially covered by the witnesses and by some of the
Senators on the panel. The footnotes from the testimony are omitted in
this version, but can be found at
http://www.law.ucla.edu/faculty/volokh/beararms/testimon.ssi
links to Eugene Volokh's Second Amendment-related articles at
http://www.law.ucla.edu/faculty/volokh/index.htm#GUNCONTROL As you
might have gathered, he has collected a large set of original sources
on the Second Amendment, mostly at
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm
For the opposite view of the Second Amendment, see Handgun Control,
Inc.'s Web site, especially
http://www.handguncontrol.org/legalaction/C2/c2rtarms.htm
For a library of law review articles related to the Second
Amendment, see http://www.2ndlawlib.org/
Return to rants