Former Supreme Court Justice John Paul Stevens, who retired from the court in 2010, was back in the news this week, attempting to rewrite the history of a part of our Bill of Rights. In the New York Times, Stevens claimed, “For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation.”
One could ask, “uniformly” as defined in what dictionary?
In the 19th century, leading constitutional scholars considered the right to arms inviolate against federal and state overreach. St. George Tucker wrote that the Second Amendment is “the true palladium of liberty” and that “[t]he right of self defence is the first law of nature: in most governments it has been the first study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
Another leading constitutional scholar of the period, William Rawle, wrote: “[n]o clause in the Constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
In his seminal Commentaries on the Constitution of the United States, 19th century Supreme Court Justice Joseph Story wrote: “The importance of [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected on the subject. The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by domestic rulers.”
Reflecting upon St. George Tucker, Story continued: “[t]he right of the citizens to keep, and bear arms has justly been considered the palladium of the liberties of a republic; since it offers a strong moral check upon 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.”
In recognizing the right of the people to keep and bear arms to not only resist but to defeat tyranny, Story echoed James Madison in Federalist 46 and Alexander Hamilton in Federalist 29. Both clearly expressed satisfaction with, and confidence in, the ability of the people to defend their common liberties. Madison, of course, introduced the Bill of Rights in the House of Representatives.
In the 19th century, there were no federal gun control laws to be challenged on Second Amendment grounds, but some state supreme courts considered weapons restrictions to violate the federal amendment and analogous provisions of their state constitutions.
In Bliss v. Commonwealth (1822), the Kentucky Supreme Court struck down, as a violation of the state constitution, a law prohibiting carrying concealed weapons. “To be in conflict with the Constitution,” the Kentucky court declared, “it is not essential that the [law] should contain a prohibition against bearing arms, in every possible form. It is the right to bear arms, that is secured by the Constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the Constitution.”
In Nunn v. State (1846), the Georgia Supreme Court asked: “When . . . did any legislative body in the Union have the right to deny to its citizens the privilege (sic) of keeping and bearing arms in defence of themselves and their country?” It continued:
The language of the second amendment is broad enough to embrace both Federal and State governments. . . . The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree. . . . Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.
In U.S. v. Cruikshank (1876), a case not challenging a gun control law, the U.S. Supreme Court recognized that the right to arms is held by individuals, privately, and that the Second Amendment means that the right “shall not be infringed by Congress.” The court had not yet incorporated any provision of the Bill of Rights against action by the states or individuals via the 14th Amendment.
The court heard its first challenge to a major federal gun control law, the National Firearms Act of 1934, in U.S. v. Miller (1939). In its decision, which cited Justice Story, the court recognized that the amendment protects the right to privately possess arms like those issued in the military, as well as most other arms. Specifically, the court indicated that the right includes arms that relate to “the preservation or efficiency of a well regulated militia,” including those that are “part of the ordinary military equipment” and any others the use of which “could contribute to the common defense.”
For that proposition, the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.”
In the Times, Stevens also advocated repealing the Second Amendment. But as the Supreme Court said in Cruikshank, the right to arms existed before the Constitution, it was not created by the Constitution, and “neither is it dependent upon that instrument for its existence.” Even if Stevens gets his wish, the people will still have the right to keep and bear arms for defense against “encroachments upon their rights,” and fair warning that they better be ready to do so.
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