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

V. "TO KEEP AND CARRY ARMS WHEREVER THEY WENT"

There are commentaries on the Second Amendment by a number of recognized legal scholars, many from the Revolutionary and Republican period, that shed light on the meaning of the right to keep and bear arms. Throughout the nineteenth century, and into the beginning of the twentieth century, Blackstone Commentaries on the Laws of England was a popular starting point for legal scholars, who would annotate it for the purpose of explaining American law. As we have already seen, Blackstone's Commentaries made an explicit declaration of the right to keep and bear arms as an individual right. Consequently, we can get a sense of how the legal profession's understanding of this right changed by examining how each jurist's annotations of Blackstone explains the right to keep and bear arms. Examining these works also provides a yardstick to which to compare the early decisions of the courts.

Our first example is from St. George Tucker, Chief Justice of the Virginia Supreme Court at the beginning of the nineteenth century, and a friend and correspondent of Thomas Jefferson. St. George Tucker's 1803 edition of Blackstone Commentaries cites the Second Amendment with reference to the right of subjects to bear arms, "And this without any qualification as to their condition or degree, as is the case in the British government." Tucker shared Blackstone's understanding that this was an individual right.

William Rawle is another one of the early commentators on the Constitution, and another friend and correspondent of Thomas Jefferson.1 Rawle's background is a bit less distinguished; he was appointed U.S. Attorney for Pennsylvania by President Washington, and was one of the early abolitionists. Rawle A View of the Constitution ( 1829), provides one of the first expositions of the meaning of the Second Amendment that argues that the second clause is not limited by the first, and that the prohibition extends to the states as well as the national government. Rawle tells us that:

In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the

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1
William Blackstone, Blackstone's Commentaries, edited by St. George Tucker, ( Philadelphia: William Young Birch & Abraham Small, 1803; reprinted Buffalo, N.Y.: Dennis & Co., 1965), 1:143 n. 40, 41. Senate Subcommittee on The Constitution Staff, "History: Second Amendment Right To 'Keep and Bear Arms'", 6-7.

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