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

III. THE LEGISLATIVE HISTORY OF THE SECOND AMENDMENT

In determining the legislative intent of the Second Amendment, there are several areas appropriate for study: state constitutions of the period, the various states' requests for a Bill of Rights, the actions of the First Congress with respect to the Second Amendment, and contemporary commentaries on the meaning of the Second Amendment. In studying these documents, our goal is to examine their relationship to the ideas of resisting tyranny and self-defense.

Not surprisingly, many of the provisions contained in the Bill of Rights were present, in one form or another, in the constitutions adopted during the Revolutionary period. Those constitutions adopted before the Bill of Rights can tell us what sense "the right to keep and bear arms" had in the political vocabulary of the time.

Pennsylvania's 1776 Constitution declared: "That the people have a right to bear arms for the defence of themselves and the state. . . ." Vermont's Constitution of 1777 similarly proclaimed: "That the people have a right to bear arms for the defence of themselves and the State. . ." The Vermont Constitution of 1786 retained the same individual rights wording.1 If, as the republican school claims, the "right to keep and bear arms" reflected concerns about the enlarged powers of the central government, why do these state constitutions contain explicitly individual guarantees of the right to keep and bear arms? The evidence shows that at least some significant fraction of the newly independent states were worried not only about common defense, but also about personal self-defense. What motivated these concerns? Common defense is clear; the skirmishes at Lexington and Concord were the result of British attempts at seizing militia stores. Was self- defense and personal ownership of arms simply an expression of the common law right articulated by Blackstone?

South Carolina's 1776 Constitution, which combined elements of the American Declaration of Independence and a state charter, contained the telling claim:

[H]ostilities having been commenced in the Massachusetts Bay, by the troops under command of General Gage, whereby a number of peaceable, helpless, and unarmed people were wantonly robbed and murdered. . . The colonists were therefore driven to the necessity of taking up arms, to repel force by force, and to defend themselves and their properties against lawless invasions and depredations.

____________________
1
Francis Newton Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, ( Washington: Government Printing Office, 1909), 5:3083, 6:3753-4, 6:3741.

-31-

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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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