For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms

By Clayton E. Cramer | Go to book overview

PREFACE

This work began in 1989 as a term paper for an undergraduate history class at Sonoma State University. With Professor Daniel Markwyn's encouragement, a 29- page paper on the original intent of the Second Amendment has become the most comprehensive history of the judicial interpretation of the right to keep and bear arms yet compiled--and even this volume is just a survey of this largely unexplored topic.

When I completed research on the original intent section of this book, I intended to write another sixty or seventy pages about judicial interpretation--how many decisions could there be? There were only a half dozen decisions by the U.S. Supreme Court, and a couple dozen state supreme court decisions in the entire history of the Republic--or so I thought. In fact, judicial interpretation of the right to keep and bear arms is not merely a field rich in material, it is positively fecund. This book includes a careful analysis of more than 200 decisions of the federal and state courts. To avoid giving a false impression of the history of judicial interpretation because of unintentional bias in selecting which decisions to study, I have gathered together all the decisions that I could locate.

Is this a comprehensive history of American gun control? No. The social and legislative history of gun control is a much more complex research topic than finding and analyzing the decisions of the courts. The comprehensive history of American gun control laws remains to be written. I have been continually startled at how little effort has been made to bring together the essential information required for even a survey of this fascinating topic. How early did the various states adopt laws prohibiting concealed carry of handguns? There is no central source for that information, and study of current penal codes for the various states is, at best, a first approximation of this information.

What influence did racism play in the passage of gun control laws during Reconstruction? There is strong evidence that it was a powerful factor--but it appears that this subject has not been examined in the detail it deserves. Were issues of social class a factor in the passage of discretionary permit issuance laws in the twentieth century? Don Kates' work in this area would seem to indicate so--but a detailed study remains to be done. Why was the National Rifle Association a major participant in the creation of the state gun control laws adopted in the 1920s and 1930s, commonly known as the Model Uniform Firearms Act? How much actual criminal misuse of privately owned automatic weapons was there during the Roaring Twenties? Which provisions of the Gun Control Act of 1968 were

-xiii-

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For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Foreword vii
  • Preface xiii
  • Acknowledgment xvii
  • I. Definitions 1
  • II. European Origins 19
  • III. The Legislative History of the Second Amendment 31
  • IV. Problems of Judicial Interpretation 63
  • V. "To Keep and Carry Arms Wherever They Went" 69
  • VI. "No Negro. . . Shall Be Allowed to Carry Fire-Arms" 97
  • VII. "Carrying Concealed Weapons is a Grievous Evil" 141
  • VIII. "A Proper Reason for Carrying a Pistol" 165
  • IX. Civil Rights, Civil Disturbances 197
  • X. The Right Comes Out of Its Coma? 221
  • XI. At the Crossroads 269
  • Selected Bibliography 275
  • Index 281
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