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

I. DEFINITIONS

Two radically different interpretations of the Second Amendment are commonly espoused in the United States. One school asserts that the Second Amendment protected the right of individual states to maintain military forces independent of the national government, based on the philosophy of civic republicanism. Any individual right that was protected was only for the purpose of maintaining those state militias,1 and is therefore irrelevant today, because those state militias have ceased to be a component of our national defense.2 In the words of John Levin, one of the more direct proponents of a collective understanding of the Second Amendment:

Thus, after over three centuries, the right to bear arms is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant; and as the society itself becomes more complex, the military power in the hands of the government more powerful, and the government itself more responsive, the right to bear arms becomes more futile, meaningless and dangerous.3

The other school claims that the Second Amendment protects an individual right "to keep and bear arms," derived from the emerging philosophy of classical liberalism. While acknowledging Revolutionary America's concern about the dangers of standing armies, this school asserts that an individual right was also intended, and that the individual right was essential to maintaining a counterbalance to both federal and state governmental power.4 In 1982, the Senate Subcommittee on the Constitution staff studied this question, and declared:

[T]he history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.5

While the terms "republican" and "liberal" have clear-cut meanings to historians, the use of these terms can be quite confusing to the uninitiated, since the

____________________
1
David J. Steinberg, "Other Views of the Second Amendment", in The Right To Keep And Bear Arms, 97th Congress, 2d Sess. ( 1982), 25.
2
Warren E. Burger, "The Right To Bear Arms", in Parade, January 14, 1990, 4-6.
3
John Levin, "The Right To Bear Arms: The Development Of The American Experience", Chicago-Kent Law Review, [Fall-Winter 1971], reprinted in The Right To Keep And Bear Arms, 129.
4
David T. Hardy, "Historical Bases of the Right To Keep and Bear Arms", in The Right To Keep And Bear Arms, 57-59.
5
Senate Subcommittee on The Constitution Staff, "History: Second Amendment Right To 'Keep and Bear Arms'", in The Right To Keep And Bear Arms, 12.

-1-

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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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