William & Mary Law Review

Volume 2 | Issue 2 Article 6

The Right to Bear Arms, A Study in Judicial

Misinterpretation
Stuart R. Hays

Repository Citation
Stuart R. Hays, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 Wm. & Mary L. Rev.
381 (1960), http://scholarship.law.wm.edu/wmlr/vol2/iss2/6

Copyright c 1960 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/wmlr
1960] THE RIGHT TO BEAR ARMS

THE RIGHT TO BEAR ARMS, A STUDY IN

JUDICIAL MISINTERPRETATION

STUART R. HAYS

INTRODUCTION
Since the very dawn of time, man had weapons to protect
and defend himself. As primitive man learned the interplays of
the tribal order which required set standards, he also learned the
advantages of belonging to the tribe. The early tribes were
based on the inter-action of the group against those outside the
tribal group; not, against the members of the tribal group.
From this interplay evolved a system of early social law.

The problem of the social control of weapons is not new.

In 124 B.C. the Imperial Chancellor Kung-Sun Hung petitioned
the Emperor Han to take the people's arms from them. The
emperor replied:

Your subject has heard that when the ancients made

the five kinds of weapons, it was not for the purpose of
killing each other, but to prevent tyranny and to punish
evil. When people lived in peace, these weapons were to
be prepared against emergencies and to kill the fierce
animals. If there were military affairs, then the weapons
were used to set up defenses and form battle arrays ... 1

The petition was turned down, stressing the right of the individ-
ual to bear arms for the common protection of society and the
individual.

Weapons have been used in warfare for defense, offense, and

revolution. It is with the defensive and revolutionary forces
that the Second Amendment concerns itself. As part of the
great power of the revolutionary force, weapons are an element
of the control of men's destiny. In the operation of govern-
ment they are a safeguard against tyranny. It has been said the

1 Am. RiflemanJan. 1959, p. 14.

 WILUAM AND MARY LAW REVIEW [Vol. 2:381

Tudors were rulers surrounded by an army: that of the English

people.
Whenever men have banded together, in that fiction known
as society, a series of laws have evolved. When these laws fail
some form of social revolution results, whether it be widespread
or guerilla in nature. England, with the tradition for law, has
felt the force of arms in the reconstruction of the social order.
The Norman conquest of Anglo-Saxon England brought
with it a legal upheaval that lasted for centuries, while the
Angles and Saxons "reformed" the Norman administrator
with Anglo-Saxon law and sword. Gradually the Norman
Conquerors became conquered by the "legal system" and the
rights of the common man began to evolve. Coke considers
"due process of law" evolving during the reign of Edward III
(1326-1377).2 Throughout the Commentaries there pervades the
theory of government by law, with remedies at law to prevent
the usurpation of power; hence the special writs of Prohibition
and Mandamus. The contrasting theory is government by
revolution and insurrection to correct usurpation. Our South
American neighbors with their foundations in the Roman-Civil
law prefer this latter.

During the Reformation there was a tendency to revive

the Roman law; this reception was powerful enough to shake
the common law to its roots, but insufficient to overpower it.
The Justinian theory of legibus solutus, the leader is absolved
from the law, gained favor with the English Stuarts. In con-
temporary France the lettre de cachet, which permitted indefinite
imprisonment by the ruler or high official were the popular
modes of revenge and non-judicial ruling. The legal systems
began to fail and revolution was the solution.
History has proved that no man without a standing army
can subjudicate a free and armed people. George III did not
profit from this advice. Americans did understand the nature
and effects of law by force and edict. Hence the preservation of
the militia and the right to bear arms: remembered also was the
right to revolt when the laws of the government began to
oppress; witness the War Between the States in 1861.
2 Coke, Comm. 381.
1960] THE RIGHT TO BEAR ARMS

The Second Amendment was thought to be an expression of

the common law rights of all Englishmen since the bill of rights
of 1688. A grievance of Colonial America was the keeping of a
standing army in the Colonies as a mode of enforcing the
"king's justice". A cursory glance shows the amendment to be
a limitation upon this practice and an expression of the
common law as was inherited from England.3

ENGLAND: THE COMMON LAW AND THE RIGHT

TO BEAR ARMS

From the very beginnings of early "England" the Saxons,

Angles, Picts, Jutes, and other tribal factions possessed
weapons for waging war and self-defense. The Roman con-
quest of lower "England" served to increase the fighting
ability of these native people. The very early laws of Anglo-
Saxon "England" were derived from the social pressures of the
family group. This group of kin-folk was called the kindred
and was connected in name and "blood" with the legendary
characters of several ages before the beginnings of recorded
time. 4

The determining factor in the kindred was the blood line,

which determined the proper faction to which one belonged.
The kindred was a society for the protection of the various
members of the family group and served from the beginnings as
a deterrent in feuds and warfare. The right of self-defense was
recognized only to the extent by which one kindred was
stronger than another. Revenge for death involved the entire
kindred of each party involved in the homicide. This bloody
form of revenge lasted until it became the custom (law) to
"purchase revenge" and thus limit the combatants to those
originally wronged and not to cousins several times removed.
Slowly the laws evolved so that the members of the kindred
could disclaim the feud itself, and leave the wronged party to
his own revenge., Thus the basis for the kindred was the force

3 See for a general discussion: Pound, Constitutional Guarantees of Liberty.

4 Anglo-Saxon Chronicle 449(A); Grimm, Teutonic Mythology 354.
5 1 Aelfred 27; 1 Cnut § 5(2b).
6 2 Eadmund 1.
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

and armed might of the kindred itself. As the individual might

grew so did the structure of the laws of England, until legend
tells us that a strong man called Arthur united much of England
under the laws of the "Round Table". By circa 690 A.D. the
ceorl, the lowest free social position in the kindred, owed the
duty of protection to his lord or immediate master7 . This "duty
owed" in terms of military service and readiness was the militia
of the day and involved all who could bear arms.

The kindreds expanded and became boroughs, which served

as the principal defensive units, and were the equivalent of the
medieval castles. They depended upon the services of the free-
man for their defense and thus there was no need for a standing
army. 8 By the year 1066 A.D. and the Battle of Hastings the
Anglo-Saxon kindred had become the bastion of society and
law in the "early dark ages": the Norman invasion began the
struggle for human rights. The kindred was more personal than
the feudal system under the conquerors; and, while great steps
were made in the advancing of administration, legend and fact
tell also of great advances in oppression. The right to self-
defense was not recognized if the dead was Norman.

The Norman conquest brought with it the feudal system in

a complete form, which reached its zenith in England during the
16th Century. During this period the kings began to formulate
plans called assizes to determine the amount and tenure of their
subjects in the military service of the king. Standing armies
were unknown and little desired by the majority of free-men.

The Assize of Arms of Henry 11 (1181) required every free-

man to keep arms suited to his station in life, and to be prepared
to fight for the common defense and the king. 9 It also de-
veloped the system of scutage, by which the subject could pay
money to the king and avoid military service: it did not forfeit
the right to bear or own personal arms. This right was protected
by Henry II in an un-named charter of 1154, in which Henry
declared that all men should retain the free rights and customs

7 Ine 51.
8 See for general discussion: Burghal Hidage (circa 911-919); Chadwick, Anglo-
Saxon Institutions, 207 et seq.
9 McKechnie, Magna Charta, p. 243 (2nd ed.).
1960] THE RIGHT TO BEAR ARMS

that they had always possessed. 10 Richard I also assized the

rights and duties of the nobles and free-men to the king and
increased the privileges of scutage in the Assize of Arms of
1198.11

This position continued until the capture of Richard during

the Crusades and the ascent of John to the throne. In 1210 a
contemporary scholar said:

...all men bore witness that never since the time of

Arthur was there a king who was so greatly feared... 12

Thus the stage was set and the scene was Runnymede in 1215.

Section 61 of the Magna Carta provided that if the King

(John) did not follow the provisions of the charter, the Barons
should have a right to correct the King by force until the King
should begin to follow the articles of the charter. 1" Thus the
right of lawful revolution was born into the constitutional law
of England. This is of major import because without the right
to revolt there is less reason to preserve the right to bear arms.
This particular portion of the carta has been reaffirmed as were
the regulations concerning the bearing of arms and tenure by
serjeanty.14

It was also recognized at an early date that the society had

certain rights against being terrorized by those going armed.
The Statute of Northampton (1328) made it illegal to ride in the
darkness armed with a dangerous weapon and terrorizing the
people. 15 Thus the right to bear arms for the purpose of self-
defense and revolution were not impeded, but the "police
power" to limit the use of weapons was recognized.

10 Stubbs, Select, Charters, 158.

31 1 Richard I, Assize of Arms of 1198.

12 Historie des ducs, 109.

13 Magna Carta § 61; McKechnie, Magna Carta, 465 (2d ed.).

'4 1 Star. of Westminster c. 36; Star. de Mil. (1 Edward 2); 3 Edward 1.

15 2 Edward III c. 3; Bishop, Star. Crimes, §§ 783, 784 (3rd ed.); 4 BI, Comm. 149;
Knight's Case, 3 Mod. 117; 87 Eng. Rep. 75 (1686).
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

With the ascent of the Stuarts to the throne, England under-

went sudden change. James I and Charles I made fine use of the
scutage and raised small standing armies. After the Common-
wealth, James II and Charles II raised even larger armies until
the time of William and Mary (1688). Charles II forbade the
owning of arms by anyone not owning land with rents of one
hundred pounds or higher. 16

The year 1688 brought the bill of rights which provided that
standing armies were a menace, and that the people should all
have the right to bear arms equally:

That the raising or keeping of a standing army within

the kingdom in time of peace, unless it be with the con-
sent of the parliament, be against the law ... '7
That the subjects known as protestants may have
arms suitable to their conditions, and as allowed by
law ... 18

These two provisions would seem to reaffirm the theory and

right to revolution, for they were born in revolution. Black-
stone, speaking of the evils of the standing army, said:

Our notions, indeed, of the dangers of standing

armies, in time of peace are derived in a great measure
from the principles and examples of our English ances-
tors. In England, the king possessed the power of
raising standing armies in time of peace according to his
own pleasure. And this perogative was justly esteemed
dangerous to the public liberties. Upon the revolution
of 1688 Parliament wisely insisted upon a bill of
rights,which should furnish an adequate security for
the future. 1

16 22 Charles II, c. 25, § 3; 4Bl. Comm. 150.

17 English bill of rights, § 6; 1 William and Mary, c. 6; 5 Corbett, Parl. Hist. 110;
1 Bl. Comm. 143, 144.
1s Id., §7.

19 1 Bl. Comm. 263.

1960] THE RIGHT TO BEAR ARMS

In addition to the right of revolution is the right of personal

self-defense. Without this basic right there would be no reason
for man to bear arms. The right to bear arms must therefore
draw its strength from the rights of man to resort to force when
law fails or an adequate remedy is not immediately available to
prevent the loss of human life. The thin line between self-
defense with regard to actual bodily fear and that of stopping a
progressing felony is in itself a delicate modern problem. A
more ancient problem is that of self-defense when faced with an
aggressive deadly force. Little is known about the early laws
regarding self-defense; it is known that the Saxons and Angles
relied on the kindred to avenge the death caused by an out-
sider of the kindred. What occurred when the killer was a
member of the same kindred as that of the deceased is un-
known.

The earliest cases of the 13th Century declare that the party
was to be found guilty subject to the King's pleasure .2o This
usually meant a royal pardon for the offender. The Statute of
Gloucester (1278) provided that the King be notified in all cases
of defensive homicide.21 This position was later clarified by a
statute of Henry VIII (1532) which declared that the defendant
be found not guilty (of murdrum) of homicide. 22 This was
said to be declarative of the common law.2 3 Thus man by the
16th Century had the right of self-defense of his property and
kin. This is a portion of the American common law as inherited
from England.

It is interesting to note that by 1920 the tide of public

opinion in England had so changed as to practically eliminate
the ownership of all weapons. 2 4 It is ironic to see that the very
nation that was founded on the right to bear arms and limit the

20 Stat. of Gloucester, 6 Edward I; 4 B!. Comm. 182-188.

21 Bracton, 3 Notebook 229, mentioning a case dating to 1234; The Case of
Robert of Herthale, 1 Seldon Society Select Pleas of the Crown 31 (1203); The
Case of Leonin and Jacob, 1 Seldon Society Select Pleas of the Crown 85
(1212); The Case of the Carter, 1 Seldon Society Select Pleas of the Crown 94
(1222); Anon., Fitzherbert, Grand. Abridg., C & P Co. no. 284 (1328); 21,
Edward III, c. 17.
22 24 Henry VIII, c. 5.
23 1 Hale P. C. 487; I East P. C. 272 (1803).
24 Firearms Acts of 1940; 10 & 11 George V, c. 43.
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

standing army had to beg the American people to ship them

small arms during the early 1940's.

It then stands to reason that the right to bear arms rests on

three solid English rights: the right of revolution; the right of
group self-preservation; and, the right of self-defense. Without
these rights there would be no reason for the bearing of arms.
If there were no reason for bearing arms, then there would be
no valid legal basis for the right to bear arms. These basic
rights are a portion of the English common law and had evolved
prior to the landing at Jamestown in 1607. Further, these
basic rights applied to all Englishmen and not merely to those
living in England and personal to England. They are the basis
for the interpretation of the Constitution of the United States. 25
The Code of the Commonwealth of Virginia, as do many other
state codes, provides that the common law of England is in full
force and effect as it existed at the time of the reign of (fourth
year) ofJames 1 (1607) and is not repealed by statute. 26

REVOLUTION; CONFEDERATION;
and CONSTITUTION

America in the 17th and 18th Centuries was a frontier

country. The sense of group self-preservation and self-
defense was strong; weapons were the natural backbone of
the wilderness civilization. As the frontier was pushed back
into the hills, urban areas developed and flourished. A new
instinct of self-defense and self-administered local law de-
veloped. Thus at the time of the Revolution (1776) nearly
every man was an army unto himself, equipped with rifle and
powder. The retaining of arms was encouraged by the mother

25 The various royal charters and grants all provided for the common law, "...
not repugnate to the reline of Englande. . ."; Massachusetts (1626); Rhode
Island (1663); Connecticut (1662); New York (1664); New Jersey (charter
date is unknown); Pennsylvania (1681); Delaware (1701); Maryland (1701);
Virginia (1606); North Carolina (1663); South Carolina (1712); and, Georgia
(1732). N. B., The original boundaries of these colonies are not always the
boundaries of the present state, and in some instances composed several
present states. See also, Zenger's Case, I Chand. (N. Y.) Am. Crim. Trials,
151 (1734); Paxton's Case, Massachusetts (1761); In Re Stamp Act, Virginia
(1776).
26 Va. Code, § 1-11 (1950).
1960] THE RIGHT TO BEAR ARMS

country.2 7 With arms came the pushing back of the curtain

of the frontier and expansion in quest of the gold and jewels
that were not there.

When the shot "was heard round the world" and the
Revolutionary War began, it was a war fought with musket
and powder belonging to the revolutionaries.28 With the
surrender at Yorktown the victorious colonies bound them-
selves together with the Artides of Confederation. They
were a series of weak and ineffective laws, based on the abso-
lute consent of all the colonies involved.29 The solution to
these weak Articles was the proposed Constitution of 1787.
It provided for a stronger central government, which could
provide for the self-preservation of the nation in time of
emergency and the posse comitatus to enforce the interior laws.

The Commonwealth of Virginia was the acknowledged

leader in the fight for freedom; she did not want to be "op-
pressed" by another central government. For this reason were
the "checks and balances" included in the central portion of
Randolph's Virginia Plan. This plan did not include provisions
relating to the militia and the rights to bear arms. 30

What fears promoted the constitutional conventions and

the bill of rights?, The Articles of Confederation did not
provide for a mode of coercing a sister state to come to the
aid of another; nor, was there any mode of raising a central
army or armed force in time of emergency. 3 1 With travel
slow and time of the essence, this was a major consideration.
The (major) objection was the fact that the English army had
done nothing but oppress the colonies; and, indeed, all
Englishmen since the time of its creation.

27 3 Henn. Star. 131 (Virginia); 3 Henn. Star. 338 (Virginia); 4 Anne § 23.
28 Longfellow, inscription on the base of the statue of The Minuteman, Concord,
Massachusetts.
2 U. S. Const. art. 1, § 8, cls.
10, 11, 15, and 16; art. 2, § 2.
30 Federalist Papers, no. 8 (Hamilton).
31 2 Story, Comm. 265 (1833 ed.).
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

. . . all nations, under all governments, must have

parties; the great secret is to control them; there are
but two ways, either by monarchy and standing army,
or by balance in the Constitution where the people have
a voice, and there is no balance, there will be everlasting
fluctuations, revolutions, and horrors, until a standing
army, with a general at its head, commands the peace,
or the necessity of an equilibrium is made appear to
all, and is adopted by all.32

The militia is the natural defense of a free country

against sudden foreign invasions, domestic usurpation
of power by rulers. It is against sound policy for a free
people to keep up large military establishments and
standing armies in time of peace, both from the enor-
mous expense with which they afford ambitious and
unprincipled rulers to subvert the government, or
trammel upon the rights of the people. The rights of
the citizens to keep and bear arms, has justly been con-
sidered as the palladium of the liberties of a republic;
since it offers a strong moral check against the usurpa-
tion and arbitrary powers of rulers: and will generally,
even if these are successful in the first instance, enable
the people to resist and triumph over them. 3 3

The greatest worry was of usurpation of the military powers

of government by either a strong civil or military leader.
The Constitution must cure these evils or not exist. Vir-
ginia already was committed to the position of maintaining
a strong militia for self-defense and to prevent the usurpa-
tion of internal powers in the Virginia Bill of Rights of 1776:

That a well regulated militia, composed of the body

of the people, trained to arms, is the proper, natural,
and safe defense of a free state: that standing armies
in time of peace, should be avoided, as dangerous to
liberty; and that in all cases the military should be

32 Adams, A Defense of the Constitution 392 (1787 ed.).

33 2 Story, Comm. 607 (1851 ed.). See also, 1 Tucker's Bi. Comm. App. 299, 300;
Rawle, On the Const., ch. 10, p. 125; 2 Lloyd's Debates, 219-220.
1960] THE RIGHT TO BEAR ARMS

under strict subordination to, and governed by, the

34
civil power.

Thus the struggle for a strong constitution was set, the

scenes were Williamsburg, New York, Boston, and other
capital cities, not Runnymede.

On May 29, 1787, sufficient delegates had gathered in

Philadelphia to revise the Articles of Confederation. Governor
Randolph objected to the Confederation on the ground that
it was ineffective defensively.35 Mr. Williamson agreed,
but was firmly against any decrease in the states' police power
by the right of the proposed federal government in using
the militia for a posse comitatus to enforce federal law. 36 Mr.
Gerry attempted compromise by suggesting a dual form of
militia with concurrent powers of activation in time of emer-
gency.3 7 Governor Randolph suggested that in lieu of the
dual form, no state be allowed to have any form of army or
navy without the consent of the Congress, but to retain the
militia under the sole direction of the Congress. 38 Mr. Gerry
suggested again the dual system, saying that all the power
in the federal government was dangerous; but, that there
was much to be said for a uniform system of martial action. 3
Mr. George Mason suggested that the power of the purse
over the army was the best safeguard.4o The final voting on
the proposals showed two states against allowing the federal
government some control over the militia. Eight (including
Virginia) were against allowing the appointment of officers by
the federal government. Four (including Virginia) were against

34 Virginia Bill of Rights of 12 May 1776, §13; 2 Poore, Const. 1909 (1877 ed.);
Note this provision is still carried in the Virginia Constitution to date: Va.
Const., 29 June 1776, 2 Poore, Const. 1911; Va. Const., 1850, 2 Poore, Const.
1920, 1931; Va. Secession Const., 1861; 2 Poore, Const. 1947; Va. Const.,
1864, 2 Poore 1947; Va. Const., 1870, 2 Poore 1954, 1968; Va. Const. 1902,
Va. Code v. 9.
35 5 Elliot, Debates, 127 (1845 ed.).
36 Id. 172.
37 Ibid.
38 Id., 205; See also, U. S. Const., Art I, §10, c. 3.

39 Id., 440.
40 Id., 443.
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

allowing the federal government the right of training the

militia. 41 By September 17, 1787, a draft of the proposed
Constitution was completed and signed by a bare majority of
the convention delegates. Thus the line was drawn tautly when
the delegates returned home to consider the proposed Consti-
tution during the ratification assemblies of the various states.

Two factions soon developed: the Federalists or pro-consti-

tutionalists, and the anti-constitutionalists. The Federalists
favored the strong central form of government that the Con-
stitution proposed, while the anti-constitutionalists were split
into many splinter groups. The Federalists, led by Hamilton,
Madison, and Jay, were much in favor of the militia provision.
They felt that there was little fear or danger from England and
Europe in the way of aggression; and, hence little need of any-
thing greater than the militia, and the provisions for a standing
army limited by the two year appropriation rule. 4 2 In addition
the militia would never be required to travel long distances, but
would be responsible only for the immediate defense. 4 3 The
raising of a standing army would then be the solution to the
44
relief of the militia in time of war.

The Federalist's position concerning the federal control of

the militia with the attendant fear of possible federal disarma-
ment caused many long hours and days of debate in this Com-
monwealth. Many Virginians felt the proposed Constitution
was a government over the individual, and not a government of
the several states with the supreme sovereignty vested in the
citizens of the several states. 4 5 Without the militia there
could be no strong provision for self-defense: with the militia
there was the constant danger of federal disarmament-thus
hung the sword of Damocles.

The Virginia debates of 1789 (in Williamsburg) touched

on the militia as follows: Mr. Clay was concerned, why the
41 Id., 446.
42 3 Story, Comm. 297 (1833 ed.); See also, Federalist Papers, numbers 24, 35.
43 3 Story, Comm. 1196 (1833 ed.).
44 3 Story, Comm. 297 (1833 ed.).

45 Adams, A Defense of the Constitution, 296 (1797 ed.); U. S. Const., Art. I, § 10,
ci. 2.
1960] THE RIGHT TO BEAR ARMS

Congress should have the power to call the states militia.

Mr. Madison answered, showing that this was to provide for
a unform method of defense and law enforcement. Mr.
George Mason expressed fear this would lead to a general
harassment by the militia, with the people finally clamoring
for a standing army in place of the militia. He feared having
the sword and the purse in the same Congress without any
separation thereof. Mr. Madison answered that we must
first trust ourselves. The absence of the militia would be a
better reason for the creation of the standing army so greatly
feared. Mr. Clay interjected the idea of using the militia as a
posse comitatus out of the militia's home state. Mr. Madison
conceded that this is a necessary power of the sovereign, who
must enforce the laws of the people as the final safeguard
against chaos and anarchy. Mr. Henry was much more elo-
quent in his fears:

Pardon me if I am too jealous and suspicious to

confide in this remote possibility (that the Congress
would use the militia wisely). My friend (Madison)
went on a supposition that the American Rulers, like
all others, will not depart from their duties without bars
and checks. No government can be safe without checks.
Then he told us that they had no temptation to violate
their duty, and that it would be to their interest to
perform it. . . . His supposition that they will not
depart from their duty as having no interest to do so,
is no answer to my mind. This is no check... the militia
sir, is our ultimate safety. We can have no security
without it... 4 6

Mr. Henry continued to say that the final power over the militia
should rest with the states; and, the federal government be
without the power to disarm the militia. Mr. Nicholas pointed
out that the states have at common law the power to arm the
militia and that the Constitution does not take this power away.
There is no pre-emption here that would be vested in the
Congress. Governor Randolph mentioned the evils attendant
where there is common defense without coercion as was the

46 3 Elliot, Debates, 385 (1836 ed.).

 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

case under the Articles. Mr. (Chief Justice) Marshall strongly

supported this reasoning. 4 7

A committee was formed to consider the militia problem

and to formulate a bill of rights.48 This committee recom-
mended the people should have the right to govern the militia
through civil authority; and, the federal government would
not be allowed to disarm the militia. 4 9 Because the assembly
was under the impression that it was to be the ninth state to
ratify, thus making the Constitution binding on all ratifiers, the
matter of the bill of rights was agreed to be brought up later
as amendments to the Constitution.5 ° The final resolutions con-
cerning the Virginia Plan bill of rights were:

That no standing army or regular troops, shall be

raised, or kept up, in time of peace,,without consent of
two thirds of the members in both houses. 51
That no soldier shall enlist for any longer term than
four years, except in time of war, and then for no longer
term than the continuance of the war."2
That each state, respectively shall have the power
to provide for the organizing, arming, and disciplining
its own militia, whensoever Congress shall omit to
neglect to provide for the same. The militia shall not be
subject to martial law, except when in actual service, in
time of war, invasion, or rebellion; and, when not in the
actual service of the United States: shall be subject only
to such fines, penalties, and punishments, as shall be di-
rected or inflicted by the laws of its own state. 53

47 See, 3 Elliot, Debates, 378-459 (1836 ed.). for a transcription of the debates.
48 The committee included: Geo. Wythe, Geo. Washington, Geo. Madison, Gov.
Randolph, andJohn Marshall; 3 Elliot, Debates 656.
49 3 Elliot, Debates 678 (1836 ed.).
50 New Hampshire ratified on June 21, 1788, three days before Virginia on June
24, 1788; 3 Elliot, Debates 657.
r- 3 Elliot, Debates 660, § 9.
52 3 Elliot, Debates 660, § 10.

53 3 Elliot, Debates 660, § 11.

1960] THE RIGHT TO BEAR ARMS

After a strong fight the Constitution became law and the right
to bear arms, the Second Amendment, included in the Bill of
Rights.

THE CONSTITUTION AND JUDICIAL

INTERPRETATION:
A JUDICIAL ERROR?

The Constitution of the United States provides for:

".... the Common Defense and General Welfare of
the United States . . ." 54
"... the Congress shall have the power.., to
provide for the calling forth the militia to execute the
laws of the Union, suppress insurrection, and repel
invasion." 5 5
".... to provide for the organizing; arming and
disciplining the militia, and for governing such part of
them as may be employed in the service of the United
States, reserving of the states respectively, the ap-
pointment of the officers and the authority of training
the militia according to the discipline prescribed by Con-
gress."5 6
*. to declare war. . "57
*. to raise and support armies ... "5 s
"The President shall be the Commander-in-Chief of
the... militia of the several states, when called into
(the) actual service of the United States." 9
"A well regulated militia, being necessary to the
security of a free state, the right of the people to bear
arms shall not be infringed."60
54 U. S. Const., Art. I, § 8.
5 U. S. Const., Art. I, § 8, c. 15.
16 U. S. Const., Art. I, § 8, c. 16.

5 U. S. Const., Art. I, § 8, c. 10.

58 U. S. Const., Art. I, § 8, d. 11.
59 U. S. Const., Art. 2, § 2.
60U . S. Const., Second Amendment.
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

The Constitutional provisions are the core of a great deal

of discussion, but very little substantive case law. Dean Roscoe
Pound feels the Second Amendment to be an error in American
constitutional history, and the controversy surrounding it a
form of the goblin of Don Quixote chasing rifles.

* but bearing arms today is a very different thing

from what it was in the days of the embattled farmers,
who withstood the British in 1775. In the urban in-
dustrial society of today a general right to bear arms so as
to be able to resist oppression by the Government would
mean that gangs could defeat the whole Bill of Rights. 61
It is interesting to speculate the attitude of the British to-
ward the American revolutionary of 1775. With a minority
taking part in the war, it would be nearly impossible to think the
Tories regarded the revolutionary American as much more than
a "gang" defeating the English bill of rights. Certainly the
average Russian who is without arms could not defeat the
oppression of his government, but what of America with twenty
million hunting licenses issued every year?
The largest area of controversy centers around the words,
"right of the people" phrase of the Second Amendment. Is
this part of the Amendment separable from the militia phrase?
Does this particular phrase refer to individual rights, or the
rights of the state as a sovereign power? Chief Justice Story
thought that the clause was not separable; that the right was
that belonging to the sovereign state, not to the individual
citizen of the state from which the sovereignty is evolved.62

The militia is the natural defense of a free country

against sudden foreign invasion, and domestic in-
surrection, and domestic usurpation of power by rulers.
It is against sound policy for a free people to keep up
large standing armies ... the right of the citizen to bear
arms has been justly considered the palladium of the
liberties . . . 63
62 Pound, Development of Constitutional Guarantees of Liberty 91.
62 2 Story, Comm. 605 (1855 ed.); 1 Tucker's B1. Comm. App. 299, 300; 2 Lloyd's
Debates 219, 220.
63 2 Story, Comm. 607 (1855 ed.).
19601 THE RIGHT TO BBA ARMS

Justice Story does not consider that the miltia is often con-
trolled by the faction in power and that even with the militia
usurpation may occur. The same usurpation cannot occur with
the people individually holding their own personal arms.

The majority of the jurisdictions have concluded that both

the United States Constitution and the various state constitu-
tions, having a similar provision relating to the right to bear
arms, refer to the militia as a whole composed and regulated
by the state as it desires. The individual does not have the right
to own or bear individual arms, such being a privilege not a
right. 64 States holding the right to bear arms is an individual
right belonging to the individuals of the state as the basis of
the state's sovereign powers are in the minority. 6 5 In view of
the Dred Scott case, this minority would appear to be the better
view. 6 6 In Dred Scott Justice Tanney interpreted the Preamble
of the Constitution to mean the powers of government flow
from the individuals to form the sovereignty of the United
States. 6 7 The government of the United States holds the power
of sovereignty in a "giant trust" as granted by the individual
persons that compose the citizenship of the United States. 6s
There can be no reason for this principle not to apply to the
several states. No state disputes the police power of the state to
prevent or limit the carrying of concealed or unusual weapons;
they do dispute the general theory of a right to bear arms by the
individual. 69

Earlier decisions required that the weapons be of the type

used in civilized warfare to be included under the right.70

64 State v. Buzzard 4 Ark. 18 (1843); Aymette v. State, 2 Humphr. (Tenn.) 154

(1891); State v. Workman, 35 W. Va. 367, 14S. E. 9 (1891).
65 Nunn v. State, 1 Ga. 243 (1846); State v. Kerner, 181 N. C. 574, 107 S.E. 222
(1921); Andrews v. State, 3 Heisk (1871).
66 The Dred Scott Case, 19 How. (U.S.) 393 (1857).
67 Id. at 397.
68 McCulloch v. Maryland, 4 Wheat (U. S.) 316 (1819); Chisholm v. Georgia, 2
Dall (U. S.) 419 (1783).
69 State v. Reid, 1 Ala. 612 (1840); State v. Mitchell, 3 Blackfrd. (Ind.) 229 (1833);
State v. Buzzard, 4 Ark. 18 (1839); Nunn v. State, 1 Ga. 243 (1846).
70 Salina v. Blaksley, 72 Kan. 230; 83 Pac. 619 (1905); State v. Smith, 11 a. Ann.
633 (1856); Pierce v. State, 42 Okla. Cr. 272, 275 p. 393 (1929); English v.
State, 35 Tex. 473 (1872); Ex parte Thomas, 21 Okla. 770, 97 p. 260 (1910).
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

One state even upheld a law preventing the carrying of any

handgun except of a military type held openly in the hand. 71
Others have restricted the ownership of handguns to those ofthe
current military type used by the armed forces.72 Arkansas
limited the right to ownership of handguns to all except police
or military persons. 7 3 Under a Michigan Constitution that
gave the right to bear arms to all resident citizens for self-
defense, it was held the state could not then take this right
away under the guise of a game law. 7

The Georgia courts have been more outspoken in their

defense of the right to bear arms. In discussing the Second
Amendment to the Constitution of the United States the
Georgia Supreme Court said:

' does it follow, that because the people refused to

delegate the right to keep and bear arms, that they (are)
designed to rest in the state governments? Is this a right
reserved to the states or to themselves? Is it not an
inalienable right, which lies at the bottom of every free
government? We do not believe that, because the
people withheld this arbitrary power of disfranchisement
from Congress, they intended to confer it on the local
legislatures. This right is too dear to be confided to a
republican legislature. 78

This same court some years later drew a distinction between

"bearing arms" and "carrying weapons". The former, "bearing
arms" refers to the constitutional right to own and possess
conferred upon the individual. The latter is the state granted
privilege of concealing a weapon on the person. 7 6
71 State v. Wilburn, 7 Baxt. (Tenn.) 57 (1856).
72 Page v. State, 3 Heisic. (Tenn.) 198 (1871); State v. Reid, I Ala. 612 (1840);
Glenn v. State, 10 Ga. App. 128, 72 S. E. 927 (1911); State v. Jummel, 13 La.
Ann. 399 (1858); Comm. v. Murphy, 166 Mass. 171, 44 N. E. 138 (1896);
Contra: In re Brinkley, 8 Idaho 597, 70 P. 609 (1902); Bliss v. Comm., 2 Litt.
(Ky.) 90 (1822). Note: The latter two cases allowed some regulation but not
abolition.
73 Haide v. State, 4 Turner (Ark.) 564 (1882).
74 People v. Zerillo, 219 Mich. 635, 189 N. W. 927 (1922).
75 Nunn v. State, 1 Ga. 243, 250 (1846).
76 Hill v. State, 53 Ga. 472,475 (1874).
1960] THE RIGHT TO BEAR ARMS

Upon its very front, as we have said, the object of the

dause is declared to be to secure to the state a well regu-
lated militia... by well settled rules for the inter-
pretation of laws, as well as by the dictates of common
sense, the object and intent is the prime purpose to its
meaning. A well regulated militia may fairly mean...
The arms bearing population of this state, organized
under law, in possession of weapons for defending the
state, and accustomed to their use. The Constitution
declares that as such a militia is necessary to the existence
of a free state, the right of the people to keep and
bear arms shall not be infringed... If the general
right to carry and to use them exists; if they may be
at pleasure borne and used in the fields, and woods, on
the highways and byways, at home and abroad, the
whole declared purpose of the provision is fulfilled.
The right to keep and bear arms so that the state may be
secured in the existence of a well regulated militia, is
fully attained. 7 7

It does not follow, that in those jurisdictions that do not

regard the clause as separable, and preserving the individual's
right to bear arms, that the state should have the power to dis-
arm the citizenry and render the entire militia useless to the
federal government. 7 8 This power would be equal to that
under the Articles, where each state could determine its position
without regard to the nation as a whole. It would seem that the
power to disarm is equal in danger to the power to remain
armed. The latter power is that chosen by the Constitution.
It would then appear that one is the correlative to the other: if
the Federal power cannot disarm, neither can the state.

The Supreme Court of the United States passed on the right

to bear arms in Cruickshank v. U. S., which concerned the Re-
construction government after the War Between the States. 7 9
The defendants et al. had been convicted of conspiracy under
the Enforcement Acts of 1870 in that they desired to feloniously
77
1d. at 475, 476.
78 Nunn v. State 1 Ga. 243 (1846).

79 U. S. v. Cruickshank, etal., 92 U. S. (2 Otto) 425, 23 L. Ed. 588 (1876).

 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

injure a Negro. 8o The Supreme Court held the Second Amend-

ment was not a limitation on the states, but was only a control
on Federal powers. 8 1 This decision did not consider if the
right to bear arms was a fundamental right possessed by all free
men.

This position was affirmed several years later when the

defendant was convicted of carrying a concealed weapon. 8 2
The states have a right under the police power to control con-
cealment or use of unusual weapons, but the Supreme Court
did not consider this position as an exception to the general
theory of a right to bear arms. The position taken was a flat
affirming of the Cruickshank principle. Arguments in later cases
have failed where the defendant has contended that the right is a
"privilege and immunity" under the Fourteenth Amendment. 83

Where the violation consisted of armed marching in a

parade as part of a quasi-military group without a state permit,
the defendants were convicted. 84 Here was added to the
Cruickshank theory the additional factor that the states control
the membership in the militia. This control is without regard to
any existing federal control. This viewpoint is interesting when
considering that World War I and World War II brought the
militia under the complete control of the federal government,
and that control has remained vested therein. 85 By allowing
the federal government to define the composition of the militia
(National Guard) the state has lost this same power through the
operation of the pre-emption theory of constitutional powers.
Query, why couldn't the federal government then cause the

80 16 Star. 140 (1870).

81 U. S. v. Cruickshank, supra;Barron v. City of Baltimore, 7 Pet. (U.S.) 250 (1835);
Fox v. Ohio, 5 How. (U. S.) 434 (1840); Lessee of Livingtson v. Moore, 7 Pet.
(U. S.) 551 (1836); Smith v. Maryland, 18 How. (U. S.) 76 (1856); Withers
v. Buckley, 20 How. (U. S.) 90 (1860); Pervear v. Comm., 5 Wall. (U. S.) 479
(1862); Twitchell v. Comm. 7 Wall (U. S.) 321 (1864); Edwards v. Elliot, 21
Wall (U. S.) 557 (1867).
82 Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1065, 30 L.Ed. 320 (1886); Patsone
v. Penn., 232 U. S. 138, 34 S. Ct. 281, 58 L. Ed. 539 (1913);
Miller v. Texas, 153 U. S. 535, 38 L.Ed. 812 (1893); Brown v. Walker, 161
U. S. 591, 16 S. Ct. 644, 40 L.Ed. 819 (1896).
83 U. S. v. Cruickshank, supra.
84 Presser v. Ill., 116 U. S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1885).
85 39 Stat. 166 (1916); 61 Stat. 191 (1947).
1960] THE RIGHT TO BEAR ARMS

standards of the National Guard's membership to be so defined

as to eliminate the national militia? This would circumvent the
construction of the Second Amendment, unless the provisions
were in fact separable. Then without regard to definition there
still would remain the unorganized "militia" of the individual.

The dissent in Presser v. Illinois, forsees the continued fight

between the "arms bearing" portion of the population and the
local governmental units. It also foresees the present federal
control of the militia:

It is undoubtedly true that all citizens capable of

bearing arms constitutes the reserved military force of
the United States as well as of the states; and, in view
of this prerogative of the General Government, as well as
of its general powers, the states cannot, even laying the
Constitutional provision out of view, prohibit the people
from keeping and bearing arms, so as to deprive the
United States of their rightful resources for maintaining
the public security, and disable the people from per-
forming their duty to the General Government. 86

Another dissent, this time concerning the State of New

York's Sullivan Act, which virtually disarmed the populous of
the City of New York, denied the right of the state under the
police power to take or render useless prior legally owned
property. 87 The effect of this was to render it impossible for
the honest citizen to own a handgun or purchase ammunition
therefor without a police issued permit, which was not issued
as a matter of course. This in effect then disarms those who
should be armed, the citizen, and allows those who will break
the law to remain armed. This should be a denial of the right to
self-defense.

Considering that the strongest pro-right to bear arms

arguments are found in the dissenting opinions, or those of
certain state courts, it seems strange to hear the Supreme Court
then say (concerning the right):

86 Presser v. Ill.,
116 U.S. 252, 256,6 S. Ct.580, 585,29 LEd. 615, 619.
87 People ex rel Darling v. Board of Wardens, City Prison, 154 N. Y. App. Div.
413 (1913). See also, Fredrich, Pistol Regulations, 23J.C.L.; C. & P.S. 531.
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

Simply to embody certain guarantees and im-

munities, which we had inherited from our English an-
cestors, and which had from time immemorial been
subjected to certain well-recognized exceptions, arising
from the necessity ofthe case: incorporated these into the
fundamental law there was no intention of disregarding
the exceptions, which continue to be recognized as if
they had been formally expressed. 88

To admit the exceptions, is to admit there must be a funda-

mental right from which the exception came. How can the
court then deny the fundamental right and recognize the
mental right and recognize the exceptions? It is apparent that
this right has not been recognized, because to recognize the
right would be to reverse the Cruickshank and Presser cases. It
would appear that the Court should determine first that there is
a right, not that there are exceptions to a non-existent right.

Congress has the right to delegate the authority of calling

out the militia to the President in times of civil strife or
insurrection.89 This power over the militia is concurrent
with that of the states. 90

* . * the power over the militia by Congress being

unlimited except, in the particulars of officering and
training them . . . it may be exercised to any extent
that may be deemed necessary by Congress . . . the
power of the state government to legislate on the
same subjects, having existed prior to the formation of
the Constitution, and not having been prohibited by
that instrument, it remains with the states, subordinated
nevertheless to the paramount law of the General
Government. 0I

88 Robertson v. Baldwin, 165 U. S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715, 717
(1899).
89 1 Stat. 424 (1785); Martin v. Mort, 12 Wheat. (U. S.) 19, 32 (1827).

90 Moore v. Houston, 3 S. & R. (Penn.) 169 (1817); Houston v. Moore, 5 Wheat

(U. S.) 1 (1820).
91 Houston v. Moore, supra 16.
1960] THE RIGHT TO BEAR ARMS

Both Congress and the President have exercised this power

quite sparingly, allowing the states the first privilege of
declaring a "state of emergency" and/or martial law. 92 One
of these instances was the call for troops in 1861 by President
Lincoln. In this instance the troops were designated as a
posse comitatus and sent into northern Virginia against Lee's
Army of Northern Virginia. The Southern States did not
answer this call on the ground that the states had called the
militia prior to the federal call. Secondly, they were engaged
in a lawful revolution, which is a basic right of all men.

During the era of Prohibition a new form of legislation

appeared on the federal scene, patterned after the Harrison
Anti-Narcotics Act.93 These were the Federal Firearms
Acts of 1934 and 1938, based on the power of the Congress
to levy tax and regulate inter-state commerce by means of
the police power. 9 4 These particular acts defined a "firearm"
and placed certain taxes on the transfer of any weapon desig-
nated by the Act to be a "firearm".95 These taxes ($200)
are sufficient to make transfer both expensive and traceable
by police authorities. Thus the traffic in machine guns and
sawed-off shotguns, the principal weapons included in the
Act as "firearms" was reduced under stiff penalty of law.

This Act was sustained in U. S. v. Adams, as a revenue

measure. 96 The District Court said that the Second Amend-
ment did not apply to gangsters as a social group, but only

92 Whiskey Rebellion of 1792, under 1 Stat. 264 (1792); Embargo Acts of 1808
under 1 Stat. 264 (1792), 1 Stat. 424 (1795), 2 Stat. 443 (1807); Lincoln's
Call of Apr. 15, 1861, 12 Stat. 281 (1861), 12 Stat. (App.) 1258 (1861).
93 Harrison And-Narcotics Act, held to be a constitutional grant of the taxing
power as a police power over interstate commerce in, U. S. v. Doremus, 249
U.S. 86, 39 S.Ct. 214,62 L.Ed. 493 (1919).
94 National Firearms Act of 1934, 48 Stat. 1236 (1934); National Firearms Act
of 1938, 48 Stat. 1237 (1938); See also, 1939 Internal Rev. Code, 15 U. S. C.
§ 902 etseq.; See also, 1954 Internal Rev. Code, 26 U.S.C. § 5848.
95 The tax levied is at the rate of $200, to be paid by the transferor, both parties
are liable for the payment. Under certain exceptions where the weapon is in-
cluded within the meaning of the Act, but is deemed to be for collectors, the
tax is $1.
96 Generally included in the term "firearm" are all weapons capable of firing more
than one shot with each pull of the trigger (machine and sub-machine guns),
any rifle or shotgun with a barrel length of under 18 inches in length. Thus
mainly concealed rifles and shotguns are included in the term.
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

to the lawful militia, of which criminals were excluded.97

This is not stretching a point, because it is a well known theory
of law that the law breaker cannot subjugate the Constitution
to overcome the Constitution. You must follow the legal
rules of the game of life. Gangsters are not engaged in lawful
revolution from the oppression of the police state.

When the defendant contended that the tax was con-

fiscatory and penal in nature, the Supreme Court said the
Congress has the power to levy confiscatory taxes under the
Constitution, provided these taxes do not interfere with the
local police powers.9 8 U. S. v. Miller, found a District Court
upholding the claim that the acts deprived the defendant of
his property without due process of law. 99 Here the peti-
tioners contended, because they could lawfully possess the
weapon (sawed-off shotgun) in a state, but could not trans-
port it into another state under the act, without payment of
the tax, that this was the denial of due process. The Supreme
Court reversed this case and sanctioned the acts as valid
exercises of the police power by taxation under the interstate
commerce and directed tax provisions of the United States
Constitution.100 In reality this series of limiting laws is
based on public opinion and the necessity of the times. Yet
why should the honest citizen forfeit the right to own a
certain type of weapon because criminals also use that type
of weapon. Criminals and gangsters use motor vehicles, yet
we do not limit the ownership of them. The real issue in the
anti-narcotics case revolved about the fact that narcotics
addiction is contra mores bonum or malum in se, with firearms
there is not the same connotation, except in so far as the
press is able to arouse the public. The Federal Firearms Acts
are a direct result of the aroused public during the "war" be-
tween gangsters and the F. B. I. They also are the result of
misguided persons who shout "there ought to be a law"

97 U. S. v. Adams, 11 F. Supp. 216 (D.Ct., Fla. 1935).

98 U. S. v. Adams, supra; U. S. v. Tot., 28 F. Supp., 900 (D.Ct., N.J. 1935); State
v. Workman, 35 W. Va. 365, 14 S. E. 9 (1891); Hill v. State, 53 Ga. 472 (1874);
Civil Rights cases, 109 U. S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1869); Robertson v.
Baldwin, 165 U. S. 275, 17 S. Ct. 356,41 L.Ed. 715 (1899).
99 U. S. v. Miller, 26 F. Supp. 1002 (D. Ct. Ark. 1935).
100 U.S. v. Miller, 307 U. S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). See also,
Sonzinsky v. U. S., 300 U. S. 506, 57 S.Ct. 554, 87 L.Ed. 772 (1937).
1960] THE RIGHT TO BEAR ARMS

every time someone is killed with a firearm. This same type

of person does not pay any attention to the rising death rate
on the highways. Yet would anyone deny there is a right
to own a motor vehicle?

CONCLUSION
Historically, society has recognized that man has the right
to preserve his own species. This is the right to repeal invasion
and to resist enemy activity. Secondly, society has recognized
the right of man to protect himself against his internal enemies
and to preserve his own life through the right of personal
self-defense. This basic ground has been enlarged to include
that which society has deemed super malum in se; that is to
include the prevention of certain felonies and the protection
of certain property rights. Thirdly, society has recognized
the right of man to revolt against the oppression of his political
leaders. This right, the sword of the Magna Carta, has been
preserved throughout the Anglo-American history of the last
five hundred years. When society is able to guarantee to
each member that he will have no fear of oppression, aggres-
sion, or bodily harm, then no longer will these rights be of
any real legal meaning. When the reason ceases the rule
should cease. Has the modern society met this responsibility?
It would seem that as long as there is danger to the life of
man that the society has not eliminated the right of self-de-
fense. As long as this right lives, then also should coexist
the right to bear arms, this is exoteric. Can we deny the right
of self-defense and remove the ability therefor? The United
States Supreme Court has admitted there are exceptions to
the right to bear arms; and, then refused to recognize the
right itself. Isn't this a recognition of the right, and also
perhaps an understanding that the Presser and Cruickshank
decisions were the children of the War Between the States and
"Black Republican Reconstructionism"?

The term militia means an army of citizens; it is a collective

term referring to a group of persons acting under authority
as the army of the people. Why then does the Second Amend-
ment refer to both the "militia" and the "people" if not for
the very purpose of protecting the rights of both groups?
 WILLIAM AND MARY LAW REVIEW [Vol. 2:381

Militia connotes a group, while people refers to all the group.

It is very possible for a person in the militia to be of the
people, in fact all persons in the militia are of the people
group, but not all of the people are in the militia.

Does it not follow that the state courts would not have
expended as much effort in defining the differences between a
weapon and a concealed weapon if they thought that the
Amendment referred only to the militia? Why did the legis-
latures before the Cruickshank decision expend so many
terms in defining their various statutes in terms of types of
weapons if they did not think that the Amendment might
include the people? Why did certain states outlaw all except
military handguns if they were not fearful of a declaration of
unconstitutionality? The logical result is that the terms
militia and people were thought to be separate in nature and
preserving two distinct rights.

Why does the state have the power to disarm the Federal
Government (militia) while the Federal Government does
not have the same right? Is it because the states could elimi-
nate the militia but not the right of the people to bear arms?
Is it to be considered that the reason this issue did not evolve
any sooner was because the "framers" of the Constitution
had no idea that the state and local governments would at-
tempt to disarm the people? That the bearing of arms for
self-defense was so common that it does need a constitutional
guarantee? The answer of yes to any of the above questions
is a recognition of the right of all people to bear arms for
their self-defense and to preserve their forms of government.