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[Tvoivozhd <tvoivozd AT infionline.net>]

Daniel Van; Kelley wrote:

> I would also like to add to the question below posed by James:  i.e. "But
> can someone explain to me why having them send money they have earned back
> to Mexico is a bad thing?  I just don't get it."
>
> By what right does anyone suggest that it is reasonable, equitable and
> justified to tell anyone else what they can do, or can not do, with the
> compensation they have received for their honest labor?
>
> A man or woman is worth, at the very least, their own labor.  It is the
> inherent property each of us is born with.  This is a fundamental principle
> necessary to the existence of any free culture or society of humans.  Our
> prosperity, as free individuals, is dependant upon this fundamental truth.
>
> Daniel Van; Kelley
>
>
>
>
> tvoivozhd---I continue to be bemused by those who make the irrelevant argument about 
> "natural" rights, godduh-given rights and other illogicals that go from a 
> false premise to a necessarily false conclusion
>  

No one has hany rights thatTHEY CANNOT PERSONALLY ENFORCE or enlist the 
overwhelming power of puppet government through the powerof the 
puppet-government manipulators, to enforce their otherwise imaginary rights.

"Reasonable, equitable and justified" are make-weight adjectives with 
out legal meaning..  A U.S.citizen (or illegal immigrant) wage-earner 
has no enforceable right to send their wages to their family that cannot 
be prevented by legislation, Presidential fiat, or for that matter, by 
Ashworth on or off a real or fictitious "terrorist" list.  Similarly 
Ashcroft routinely interferes with State-approved marijuana for patients 
for whom it has been prescribed by their doctors, and constantly 
threatens to imprison the doctors who make such prescriptions.  "States 
Rights? "  "Constitutional Rights?"  You have to be huffing glue to 
think they are real or "enforceable" which is the only means by which 
they become real.

Banks routinely seize and lock up depositor's funds by the simple 
request of any Agency or  level of government---no court order asked or 
required---you're going to send your wages when and where you want?  
Forget that misbegotten idea too---wouldn't make any difference if you 
were sending it to Mother Theresa..

Remember the a-a-a-ah "conservative" Warren Burger ricocheting all 
around the U.S. on big-ticket speaking engagements, bellowing about a 
state-controlled militia being the only legitimate possessor of 
firearms---never mind the unanimous sentiment of the American Colonials 
was that there should be NO standing army, the militia, if and when 
comprised by volunteers, brought their own firearms with them..  The 
Second Amendment has beet butchered, drawn and quartered out of 
existence by a criminal conspiracy of  Congress and the Federal Supreme 
Court.  It won't change under the Republicrats either.

"Right of free speech, assembly and peacable petition of Congress?"  
That ended with a resounding crash with Douglas MacArthur, against 
specific orders of President Hoover, driving World War I Veterans out of 
Washington at bayonet-point in 1932---Wimp Hoover didn't have the gots 
to courtmartial the sonofabitch 


 Sources on the Second Amendment and Rights to Keep and Bear Arms in
 State Constitutions

Prof. Eugene Volokh, UCLA Law School 
<http://www.law.ucla.edu/faculty/volokh> * 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#*>



I.              Text of the Second Amendment and Related Contemporaneous 
Provisions <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC1>
II.              Calls for the Right to Keep and Bear Arms from State 
Ratification Conventions 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC2>
III.              "The Right of the People" in Other Bill of Rights 
Provisions <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC3>
IV.              Some Other Contemporaneous Constitutional Provisions 
With a Similar Grammatical Structure 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC4>
V.              18th- and 19th-Century Commentary 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC5>
      A.              William Blackstone, Commentaries on the Laws of 
England (1765) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC6>
      B.              St. George Tucker, Blackstone's Commentaries 
(1803) <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC7>
      C.              Joseph Story, Commentaries on the Constitution of 
the United States (1833) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC8>
      D.              Thomas Cooley, General Principles of 
Constitutional Law (1880) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC9>
VI.              Supreme Court Cases 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC10>
      A.              United States v. Miller, 307 U.S. 174 (1939) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC11>
      B.              Dred Scott v. Sandford, 60 U.S. 393, 416-17, 
449-51 (1857) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC12>
      C.              United States v. Cruikshank, 92 U.S. 542, 551 
(1876) <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC13>
      D.              Presser v. Illinois, 116 U.S. 252, 264-66 (1886) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC14>
      E.              Logan v. United States, 144 U.S. 263, 286-87 
(1892) <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC15>
      F.              Miller v. Texas, 153 U.S. 535, 538-39 (1894) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC16>
      G.              Dissent in Brown v. Walker, 161 U.S. 591, 635 
(1896) (Field, J., dissenting) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC17>
      H.              Robertson v. Baldwin, 165 U.S. 275, 280 (1897) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC18>
      I.              Maxwell v. Dow, 176 U.S. 581, 597 (1900) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC19>
      J.              Trono v. United States, 199 U.S. 521, 528 (1905) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC20>
      K.              Twining v. New Jersey, 211 U.S. 78, 98 (1908) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC21>
      L.              United States v. Schwimmer, 279 U.S. 644 (1929) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC21.5>
      M.              Dissent in Adamson v. California, 332 U.S. 46, 78 
(1947) (Black, J., dissenting) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC22>
      N.              Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) 
(Jackson, J., for the majority) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC23>
      O.              Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958) 
(Frankfurter, J., for the majority) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC24>
      P.              Konigsberg v. State Bar, 366 U.S. 36, 49 & n.10 
(1961)  (Harlan, J., for the majority) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC25>
      Q.              Dissent in Adams v. Williams, 407 U.S. 143, 
149-51 (1972) (Douglas, J., dissenting, joined by Marshall, J.) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC26>
      R.              Lewis v. United States, 445 U.S. 55, 65 (1980) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC27>
      S.              United States v. Verdugo- Urquidez, 494 U.S. 259, 
265 (1990) <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC28>
      T.              Casey v. Planned Parenthood, 505 U.S. 833, 848 
(1992) (dictum) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC29>
      U.              Concurrence in Printz v. United States, 521 U.S. 
898, 938-939 (1997) (Thomas, J., concurring) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC30>
      V.              Dissent in Muscarello v. United States, 524 U.S. 
125, 143 (1998) (Ginsburg, J., joined by Rehnquist, C.J., and Scalia and 
Souter, JJ.) <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC31>
VII.              Relevant Statutes 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC32>
      A.              Militia Act of 1792 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC33>
      B.              The currently effective Militia Act 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC34>
      C.              The Freedmen's Bureau Act (1866) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC35>
      D.              The Firearms Owners' Protection Act (1986) 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC36>
VIII.              Other Materials 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#TOC37>
IX.              State Constitutional Right to Keep and Bear Arms 
Provisions (Current and Superseded)
      A.               Sorted by state, though including both current 
and superseded provisions 
<http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm>
      B.               Sorted by date, from 1776 to the present 
<http://www.law.ucla.edu/faculty/volokh/beararms/statedat.htm>

             These materials can be useful for discussing how the 
Second Amendment ought to be interpreted.  I intentionally include more 
materials here than any teacher will likely use, to give people 
flexibility in picking and choosing.


     I.              Text of the Second Amendment and Related
     Contemporaneous Provisions

             Second Amendment:  A well regulated Militia, being 
necessary to the security of a free State, the right of the people to 
keep and bear Arms, shall not be infringed.

             English Bill of Rights:  That the subjects which are 
protestants may have arms for their defence suitable to their conditions 
and as allowed by law (1689). 1 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#1>

             Connecticut:  Every citizen has a right to bear arms in 
defense of himself and the state (1818). 2 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#2>

             Kentucky:  [T]he right of the citizens to bear arms in 
defense of themselves and the State shall not be questioned (1792). 3 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#3>

             Massachusetts:  The people have a right to keep and to 
bear arms for the common defence (1780). 4 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#4>

             North Carolina:  [T]he people have a right to bear arms, 
for the defence of the State; and, as standing armies, in time of peace, 
are dangerous to liberty, they ought not to be kept up; and that the 
military should be kept under strict subordination to, and governed by, 
the civil power (1776). 5 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#5>

             Pennsylvania:  That the people have a right to bear arms 
for the defence of themselves and the state; and as standing armies in 
the time of peace are dangerous to liberty, they ought not to be kept 
up; And that the military should be kept under strict subordination, to, 
and governed by, the civil power (1776). 6 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#6>

             The right of the citizens to bear arms in defence of 
themselves and the State shall not be questioned (1790). 7 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#7>

             Rhode Island:  The right of the people to keep and bear 
arms shall not be infringed (1842). 8 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#8>

             Tennessee:  [T]he freemen of this State have a right to 
keep and bear arms for their common defence (1796). 9 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#9>

             Vermont:  [T]he people have a right to bear arms for the 
defence of themselves and the State -- and as standing armies in time of 
peace are dangerous to liberty, they ought not to be kept up; and that 
the military should be kept under strict subordination to and governed 
by the civil power (1777). 10 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#10>

             Virginia:  That a well regulated militia, composed of the 
body of the people, trained to arms, is the proper, natural, and safe 
defense of a free state; that standing armies, in time of peace, should 
be avoided as dangerous to liberty; and that in all cases the military 
should be under strict subordination to, and governed by, the civil 
power. 11 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#11>


     II.              Calls for the Right to Keep and Bear Arms from
     State Ratification Conventions

12 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#12>

             Five of the states that ratified the Constitution also 
sent demands for a Bill of Rights to Congress.  All these demands 
included a right to keep and bear arms.  Here, in relevant part, is 
their text:

             New Hampshire:  Twelfth[:] Congress shall never disarm any 
Citizen unless such as are or have been in Actual Rebellion.

             Virginia:  . . .  Seventeenth, That the people have a 
right to keep and bear arms; that a well regulated Militia composed of 
the body of the people trained to arms is the proper, natural and safe 
defence of a free State.  That standing armies in time of peace are 
dangerous to liberty, and therefore ought to be avoided, as far as the 
circumstances and protection of the Community will admit; and that in 
all cases the military should be under strict subordination to and 
governed by the Civil power.

             New York:  . . .  That the People have a right to keep and 
bear Arms; that a well regulated Militia, including the body of the 
People capable of bearing Arms, is the proper, natural and safe defence 
of a free State; That the Militia should not be subject to Martial Law 
except in time of War, Rebellion or Insurrection.  That Standing Armies 
in time of Peace are dangerous to Liberty, and ought not to be kept up, 
excess in Cases of necessity; and that at all times, the Military should 
be under strict Subordination to the civil Power.

             North Carolina:  Almost identical to Virginia demand, but 
with "the body of the people, trained to arms" instead of "the body of 
the people trained to arms."

             Rhode Island:  Almost identical to Virginia demand, but 
with "the body of the people capable of bearing arms" instead of "the 
body of the people trained to arms," and with a "militia shall not be 
subject to martial law" proviso as in New York.


     III.              "The Right of the People" in Other Bill of
     Rights Provisions

             First Amendment:  Congress shall make no law . . . 
abridging . . . the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances.

             Fourth Amendment:  The right of the people to be secure in 
their persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated . . . .

             Ninth Amendment:  The enumeration in the Constitution of 
certain rights shall not be construed to deny or disparage others 
retained by the people.

             Tenth Amendment:  [Speaking of "the powers . . . of the 
people" rather than "the right . . . of the people"] The powers not 
delegated to the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or to the people.


     IV.              Some Other Contemporaneous Constitutional
     Provisions With a Similar Grammatical Structure

13 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#13>

             Rhode Island Free Press Clause:  The liberty of the press 
being essential to the security of freedom in a state, any person may 
publish sentiments on any subject, being responsible for the abuse of 
that liberty . . . . 14 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#14>

             Massachusetts Free Press Clause:  The liberty of the press 
is essential to the security of freedom in a state it ought not, 
therefore, to be restricted in this commonwealth. 15 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#15>

             Massachusetts Speech and Debate Clause:  The freedom of 
deliberation, speech and debate, in either house of the legislature, is 
so essential to the rights of the people, that it cannot be the 
foundation of any accusation of prosecution, action or complaint, in any 
other court or place whatsoever. 16 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#16>

             New Hampshire Venue Clause:  In criminal prosecutions, the 
trial of the facts in the vicinity where they happen is so essential to 
the security of the life, liberty, and estate of the citizen, that no 
crime or offence ought to be tried in any other county than that in 
which it is committed . . . . 17 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#17>


     V.              18th- and 19th-Century Commentary


       A.              William Blackstone, Commentaries on the Laws of
       England (1765)

18 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#18>

             In the three preceding articles we have taken a short view 
of the principal absolute rights [personal security, personal liberty, 
private property] which appertain to every Englishman.  But in vain 
would these rights be declared, ascertained, and protected by the dead 
letter of the laws, if the constitution had provided no other method to 
secure their actual enjoyment.  It has therefore established certain 
other auxiliary subordinate rights of the subject, which serve 
principally as outworks or barriers to protect and maintain inviolate 
the three great and primary rights, of personal security, personal 
liberty, and private property.

             1.  The constitution, powers, and privileges of parliament 
. . . .

             2.  The limitation of the king's prerogative . . . .

             3.  . . . [A]pplying to the courts of justice for redress 
of injuries.

             4.  . . . [T]he right of petitioning the king, or either 
house of parliament, for the redress of grievances.

             5.  The fifth and last auxiliary right of the subject, 
that I shall at present mention, is that of having arms for their 
defence, suitable to their condition and degree, and such as are allowed 
by law.  Which is also declared by the same statute . . . and is indeed 
a public allowance, under due restrictions, of the natural right of 
resistance and self-preservation, when the sanctions of society and laws 
are found insufficient to restrain the violence of oppression.

             . . .  [T]o vindicate [the three primary rights], when 
actually violated or attacked, the subjects of England are entitled, in 
the first place, to the regular administration and free course of 
justice in the courts of law; next, to the right of petitioning the king 
and parliament for redress of grievances; and, lastly, to the right of 
having and using arms for self-preservation and defence.


       B.              St. George Tucker, Blackstone's Commentaries (1803)

19 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#19>

             [Annotation to Blackstone's discussion of the right to 
have arms as the fifth and last auxiliary right:]

             The fifth and last auxiliary right of the subject, that I 
shall at present mention, is that of having arms for their defence 
[fn40] suitable to their condition and degree, and such as are allowed 
by law. [fn41]

             [fn40] The right of the people to keep and bear arms shall 
not be infringed, and this without any qualification as to their 
condition or degree, as is the case in the British government.

             [fn41] Whoever examines the forest, and game laws in the 
British code, will readily perceive that the right of keeping arms is 
effectually taken away from the people of England.  The commentator 
himself informs us, "that the prevention of popular insurrections and 
resistence [sic] to government by disarming the bulk of the people, is a 
reason oftener meant than avowed by the makers of the forest and game 
laws."

             [A separate discussion in an Appendix, specifically about 
the Second Amendment.]

             A well regulated militia being necessary to the security 
of a free state, the right of the people to keep, and bear arms, shall 
not be infringed.

             This may be considered as the true palladium of liberty . 
. . .  The right of self defence is the first law of nature: in most 
governments it has been the 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.

             In England, the people have been disarmed, generally, 
under the specious pretext of preserving the game: a never failing lure 
to bring over the landed aristocracy to support any measure, under that 
mask, though calculated for very different purposes.  True it is, their 
bill of rights seems at first view to counteract this policy: but the 
right of bearing arms is confined to protestants, and the words suitable 
to their condition and degree, have been interpreted to authorise the 
prohibition of keeping a gun or other engine for the destruction of 
game, to any farmer, or inferior tradesman, or other person not 
qualified to kill game.  So that not one man in five hundred can keep a 
gun in his house without being subject to a penalty.  [Editorial note:  
I understand that this last sentence is considered by some historians to 
be an exaggeration. 20 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#20>]


       C.              Justice Joseph Story, Commentaries on the
       Constitution of the United States (1833)

21 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#21>

             The next amendment is: "A well regulated militia being 
necessary to the security of a free state, the right of the people to 
keep and bear arms shall not be infringed."  {[In Story's /Familiar 
Exposition of the Constitution of the United States/ (1840), the 
following two sentences are also added:] One of the ordinary modes, by 
which tyrants accomplish their purposes without resistance, is, by 
disarming the people, and making it an offence to keep arms, and by 
substituting a regular army in the stead of a resort to the militia.  
The friends of a free government cannot be too watchful, to overcome the 
dangerous tendency of the public mind to sacrifice, for the sake of mere 
private convenience, this powerful check upon the designs of ambitious men.}

             The importance of this article will scarcely be doubted by 
any persons, who have duly reflected upon the subject.  The militia is 
the natural defence of a free country against sudden foreign invasions, 
domestic insurrections, and domestic usurpations of power by rulers.  It 
is against sound policy for a free people to keep up large military 
establishments and standing armies in time of peace, both from the 
enormous expenses, with which they are attended, and the facile means, 
which they afford to ambitious and unprincipled rulers, to subvert the 
government, or trample upon the rights of the people.  The right of the 
citizens to keep and bear arms has justly been considered, as the 
palladium of the liberties of a republic; since it offers a strong moral 
check 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.  And yet, though this truth 
would seem so clear, and the importance of a well regulated militia 
would seem so undeniable, it cannot be disguised, that among the 
American people there is a growing indifference to any system of militia 
discipline, and a strong disposition, from a sense of its burthens, to 
be rid of all regulations.  How it is practicable to keep the people 
duly armed without some organization, it is difficult to see.  There is 
certainly no small danger, that indifference may lead to disgust, and 
disgust to contempt; and thus gradually undermine all the protection 
intended by this clause of our national bill of rights.


       D.              Thomas Cooley, General Principles of
       Constitutional Law (1880)

22 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#22>

             Section IV. -- The Right to Keep and Bear Arms.

             The Constitution. -- By the Second Amendment to the 
Constitution it is declared that, "a well-regulated militia being 
necessary to the security of a free State, the right of the people to 
keep and bear arms shall not be infringed."

             The amendment, like most other provisions in the 
Constitution, has a history.  It was adopted with some modification and 
enlargement from the English Bill of Rights of 1688, where it stood as a 
protest against arbitrary action of the overturned dynasty in disarming 
the people, and as a pledge of the new rulers that this tyrannical 
action should cease.  The right declared was meant to be a strong moral 
check against the usurpation and arbitrary power of rulers, and as a 
necessary and efficient means of regaining rights when temporarily 
overturned by usurpation.

             The Right is General. -- It may be supposed from the 
phraseology of this provision that the right to keep and bear arms was 
only guaranteed to the militia; but this would be an interpretation not 
warranted by the intent.  The militia, as has been elsewhere explained, 
consists of those persons who, under the law, are liable to the 
performance of military duty, and are officered and enrolled for service 
when called upon.  But the law may make provision for the enrolment of 
all who are fit to perform military duty, or of a small number only, or 
it may wholly omit to make any provision at all; and if the right were 
limited to those enrolled, the purpose of this guaranty might be 
defeated altogether by the action or neglect to act of the government it 
was meant to hold in check.  The meaning of the provision undoubtedly 
is, that the people, from whom the militia must be taken, shall have the 
right to keep and bear arms, and they need no permission or regulation 
of law for the purpose.  But this enables the government to have a well 
regulated militia; for to bear arms implies something more than the mere 
keeping; it implies the learning to handle and use them in a way that 
makes those who keep them ready for their efficient use; in other words, 
it implies the right to meet for voluntary discipline in arms, observing 
in doing so the laws of public order.

             Standing Army. -- A further purpose of this amendment is, 
to preclude any necessity or reasonable excuse for keeping up a standing 
army.  A standing army is condemned by the traditions and sentiments of 
the people, as being as dangerous to the liberties of the people as the 
general preparation of the people for the defence of their institutions 
with arms is preservative of them.

             What Arms may be kept. -- The arms intended by the 
Constitution are such as are suitable for the general defence of the 
community against invasion or oppression, and the secret carrying of 
those suited merely to deadly individual encounters may be prohibited.


     VI.              Supreme Court Cases

             These are pretty much all the opinions that mention the 
Amendment, even in passing.  Few teachers will want to assign them all, 
but we include them to give readers maximum choice.


       A.              United States v. Miller, 307 U.S. 174 (1939)

             [The only extensive modern discussion of the Amendment]

             An indictment in the District Court Western District 
Arkansas, charged that Jack Miller and Frank Layton "did unlawfully, 
knowingly, wilfully, and feloniously transport in interstate commerce 
from the town of Claremore in the State of Oklahoma to the town of 
Siloam Springs in the State of Arkansas a certain firearm, to-wit, a 
double barrel 12-gauge Stevens shotgun having a barrel less than 18 
inches in length [contrary to the National Firearms Act] . . . ."

             A duly interposed demurrer alleged:  The National Firearms 
Act is not a revenue measure but an attempt to usurp police power 
reserved to the States, and is therefore unconstitutional.  Also, it 
offends the inhibition of the Second Amendment to the Constitution -- "A 
well regulated Militia, being necessary to the security of a free State, 
the right of people to keep and bear Arms, shall not be infringed."  The 
District Court held that section eleven of the Act violates the Second 
Amendment.  It accordingly sustained the demurrer and quashed the 
indictment.

             . . .

             In the absence of any evidence tending to show that 
possession or use of a "shotgun having a barrel of less than eighteen 
inches in length" at this time has some reasonable relationship to the 
preservation or efficiency of a well regulated militia, we cannot say 
that the Second Amendment guarantees the right to keep and bear such an 
instrument.  Certainly it is not within judicial notice that this weapon 
is any part of the ordinary military equipment or that its use could 
contribute to the common defense.  Aymette v. State, 2 Humphreys (Tenn.) 
154, 158.

             The Constitution as originally adopted granted to the 
Congress power -- "To provide for calling forth the Militia to execute 
the Laws of the Union, suppress Insurrections and repel Invasions; To 
provide for organizing, arming, and disciplining, the Militia, and for 
governing such Part of them as may be employed in the Service of the 
United States, reserving to the States respectively, the Appointment of 
the Officers, and the Authority of training the Militia according to the 
discipline prescribed by Congress."  With obvious purpose to assure the 
continuation and render possible the effectiveness of such forces the 
declaration and guarantee of the Second Amendment were made.  It must be 
interpreted and applied with that end in view.

             The Militia which the States were expected to maintain and 
train is set in contrast with Troops which they were forbidden to keep 
without the consent of Congress.  The sentiment of the time strongly 
disfavored standing armies; the common view was that adequate defense of 
country and laws could be secured through the Militia -- civilians 
primarily, soldiers on occasion.

             The signification attributed to the term Militia appears 
from the debates in the Convention, the history and legislation of 
Colonies and States, and the writings of approved commentators.  These 
show plainly enough that the Militia comprised all males physically 
capable of acting in concert for the common defense.  "A body of 
citizens enrolled for military discipline."  And further, that 
ordinarily when called for service these men were expected to appear 
bearing arms supplied by themselves and of the kind in common use at the 
time.  [Citing further sources, e.g., the Virginia Act of October 1785 
providing for a Militia of "all free male persons between the ages of 
eighteen and fifty years," with certain exceptions.]

             Most if not all of the States have adopted provisions 
touching the right to keep and bear arms.  Differences in the language 
employed in these have naturally led to somewhat variant conclusions 
concerning the scope of the right guaranteed.  But none of them seem to 
afford any material support for the challenged ruling of the court below.


       B.              Dred Scott v. Sandford, 60 U.S. 393, 416-17,
       449-51 (1857)

             [In the course of explaining that the Bill of Rights -- 
including the Due Process Clause, which the majority concluded prevented 
Congress from interfering with slaveowners' property rights in their 
slaves -- limited Congressional action in the Territories, the Court 
said:] [N]o one, we presume, will contend that Congress can make any law 
in a Territory respecting the establishment of religion, or the free 
exercise thereof, or abridging the freedom of speech or of the press, or 
the right of the people of the Territory peaceably to assemble, and to 
petition the Government for the redress of grievances.

             Nor can Congress deny to the people the right to keep and 
bear arms, nor the right to trial by jury, nor compel any one to be a 
witness against himself in a criminal proceeding.  These powers, and 
others, in relation to rights of person, which it is not necessary here 
to enumerate, are, in express and positive terms, denied to the General 
Government; and the rights of private property have been guarded with 
equal care.

             [Earlier in the opinion, in holding that blacks generally 
could not be U.S. citizens, the Court said:] [I]t cannot be believed 
that the large slaveholding States regarded [blacks] as included in the 
word citizens, or would have consented to a Constitution which might 
compel them to receive them in that character from another State.  For 
if they were so received, and entitled to the privileges and immunities 
of citizens, it would exempt them from the operation of the special laws 
and from the police regulations which they considered to be necessary 
for their own safety.

             It would give to persons of the negro race, who were 
recognised as citizens in any one State of the Union, the right to enter 
every other State whenever they pleased, singly or in companies, without 
pass or passport, and without obstruction, to sojourn there as long as 
they pleased, to go where they pleased at every hour of the day or night 
without molestation, unless they committed some violation of law for 
which a white man would be punished; and it would give them the full 
liberty of speech in public and in private upon all subjects upon which 
its own citizens might speak; to hold public meetings upon political 
affairs, and to keep and carry arms wherever they went.  And all of this 
would be done in the face of the subject race of the same color, both 
free and slaves, and inevitably producing discontent and insubordination 
among them, and endangering the peace and safety of the State.


       C.              United States v. Cruikshank, 92 U.S. 542, 551 (1876)

             [Cruikshank and others were tried under the Civil Rights 
Act of 1870 for lynching two blacks.  The Act barred people for 
conspiracy to "prevent or hinder [a person's] free exercise and 
enjoyment of any right or privilege granted or secured to him by the 
constitution or laws of the United States, or because of his having 
exercised the same."  The charges included, among other things, that the 
defendants conspired to interfere with the victims' rights to peaceably 
assemble and to keep and bear arms.  The Court threw out the indictment, 
saying:]

             The first and ninth counts state the intent of the 
defendants to have been to hinder and prevent the citizens named in the 
free exercise and enjoyment of their "lawful right and privilege to 
peaceably assemble together with each other and with other citizens of 
the United States for a peaceful and lawful purpose."  The right of the 
people peaceably to assemble for lawful purposes existed long before the 
adoption of the Constitution of the United States.  In fact, it is, and 
always has been, one of the attributes of citizenship under a free 
government.

             It "derives its source," to use the language of Chief 
Justice Marshall, in Gibbons v. Ogden, "from those laws whose authority 
is acknowledged by civilized man throughout the world."  It is found 
wherever civilization exists.  It was not, therefore, a right granted to 
the people by the Constitution.  The government of the United States 
when established found it in existence, with the obligation on the part 
of the States to afford it protection.  As no direct power over it was 
granted to Congress, it remains, according to the ruling in Gibbons v. 
Ogden, subject to State jurisdiction.  Only such existing rights were 
committed by the people to the protection of Congress as came within the 
general scope of the authority granted to the national government.

             The first amendment to the Constitution prohibits Congress 
from abridging "the right of the people to assemble and to petition the 
government for a redress of grievances."  This, like the other 
amendments proposed and adopted at the same time, was not intended to 
limit the powers of the State governments in respect to their own 
citizens, but to operate upon the National government alone.  It is now 
too late to question the correctness of this construction.  As was said 
by the late Chief Justice, in Twitchell v. The Commonwealth, "the scope 
and application of these amendments are no longer subjects of discussion 
here."  They left the authority of the States just where they found it, 
and added nothing to the already existing powers of the United States.

             The particular amendment now under consideration assumes 
the existence of the right of the people to assemble for lawful 
purposes, and protects it against encroachment by Congress.  The right 
was not created by the amendment; neither was its continuance 
guaranteed, except as against congressional interference.  For their 
protection in its enjoyment, therefore, the people must look to the 
States.  The power for that purpose was originally placed there, and it 
has never been surrendered to the United States.

             The right of the people peaceably to assemble for the 
purpose of petitioning Congress for a redress of grievances, or for any 
thing else connected with the powers or the duties of the national 
government, is an attribute of national citizenship, and, as such, under 
the protection of, and guaranteed by, the United States.  The very idea 
of a government, republican in form, implies a right on the part of its 
citizens to meet peaceably for consultation in respect to public affairs 
and to petition for a redress of grievances.  If it had been alleged in 
these counts that the object of the defendants was to prevent a meeting 
for such a purpose, the case would have been within the statute, and 
within the scope of the sovereignty of the United States.  Such, 
however, is not the case.  The offence, as stated in the indictment, 
will be made out, if it be shown that the object of the conspiracy was 
to prevent a meeting for any lawful purpose whatever.

             The second and tenth counts are equally defective.  The 
right there specified is that of "bearing arms for a lawful purpose."  
This is not a right granted by the Constitution.  Neither is it in any 
manner dependent upon that instrument for its existence.  The second 
amendment declares that it shall not be infringed; but this, as has been 
seen, means no more than that it shall not be infringed by Congress.  
This is one of the amendments that has no other effect than to restrict 
the powers of the national government, leaving the people to look for 
their protection against any violation by their fellow-citizens of the 
rights it recognizes, to what is called, in The City of New York v. 
Miln, the "powers which relate to merely municipal legislation, or what 
was, perhaps, more properly called internal police," "not surrendered or 
restrained" by the Constitution of the United States.


       D.              Presser v. Illinois, 116 U.S. 252, 264-66 (1886)

             [State law barred "any body of men, other than the 
organized militia of the state and the troops of the United States, from 
associating as a military company and drilling with arms in any city or 
town of the state"; the Court held:] The first [claim is based on] the 
second amendment, which declares:  "A well regulated militia being 
necessary to the security of a free state, the right of the people to 
keep and bear arms shall not be infringed."  We think it clear that the 
sections under consideration, which only forbid bodies of men to 
associate together as military organizations, or to drill or parade with 
arms in cities and towns unless authorized by law, do not infringe the 
right of the people to keep and bear arms.

             But a conclusive answer to the contention that this 
amendment prohibits the legislation in question lies in the fact that 
the amendment is a limitation only upon the power of congress and the 
national government, and not upon that of the state. It was so held by 
this court in the case of U. S. v. Cruikshank, in which the chief 
justice, in delivering the judgment of the court, said that the right of 
the people to keep and bear arms "is not a right granted by the 
constitution.  Neither is it in any manner dependent upon that 
instrument for its existence.  The second amendment declares that it 
shall not be infringed, but this, as has been seen, means no more than 
that it shall not be infringed by congress.  This is one of the 
amendments that has no other effect than to restrict the powers of the 
national government . . . ." . . .

             It is undoubtedly true that all citizens capable of 
bearing arms constitute the reserved military force or reserve militia 
of the United States as well as of the states, and, in view of this 
prerogative of the general government, as well as of its general powers, 
the states cannot, even laying the constitutional provision in question 
out of view, prohibit the people from keeping and bearing arms, so as to 
deprive the United States of their rightful resource for maintaining the 
public security, and disable the people from performing their duty to 
the general government.  But, as already stated, we think it clear that 
the sections under consideration do not have this effect.


       E.              Logan v. United States, 144 U.S. 263, 286-87 (1892)

             [The Court was faced with a question about the scope of 
the conspiracy statute involved in Cruikshank.] In U.S. v. Cruikshank . 
. . (1) It was held that the first amendment of the constitution . . . 
did not grant to the people the right peaceably to assemble for lawful 
purposes, but recognized that right as already existing, and did not 
guaranty its continuance except as against acts of congress . . . .

             (2)  It was held that the second amendment of the 
constitution, declaring that "the right of the people to keep and bear 
arms shall not be infringed," was equally limited in its scope.


       F.              Miller v. Texas, 153 U.S. 535, 538-39 (1894)

             [Miller challenged a law banning the carrying of dangerous 
weapons on the person.] In his motion for a rehearing, however, 
defendant claimed that the law of the state of Texas forbidding the 
carrying of weapons, and authorizing the arrest, without warrant, of any 
person violating such law, under which certain questions arose upon the 
trial of the case, was in conflict with the second and fourth amendments 
to the constitution of the United States, one of which provides that the 
right of the people to keep and bear arms shall not be infringed, and 
the other of which protects the people against unreasonable searches and 
seizures.

             We have examined the record in vain, however, to find 
where the defendant was denied the benefit of any of these provisions, 
and, even if he were, it is well settled that the restrictions of these 
amendments operate only upon the federal power, and have no reference 
whatever to proceedings in state courts.  And if the fourteenth 
amendment limited the power of the states as to such rights, as 
pertaining to citizens of the United States, we think it was fatal to 
this claim that it was not set up in the trial court.


       G.              Dissent in Brown v. Walker, 161 U.S. 591, 635
       (1896) (Field, J., dissenting)

             [The question had to do with the scope of a witness's 
Fifth Amendment privilege against self- incrimination.  Field wrote:] As 
said by counsel for the appellant:  "The freedom of thought, of speech, 
and of the press; the right to bear arms; exemption from military 
dictation; security of the person and of the home; the right to speedy 
and public trial by jury; protection against oppressive bail and cruel 
punishment, -- are, together with exemption from self-crimination, the 
essential and inseparable features of English liberty.  Each one of 
these features had been involved in the struggle above referred to in 
England within the century and a half immediately preceding the adoption 
of the constitution, and the contests were fresh in the memories and 
traditions of the people at that time."


       H.              Robertson v. Baldwin, 165 U.S. 275, 280 (1897)

             [Robertson challenged, under the Thirteenth Amendment, 
enforcement of a mariner's labor contract.  The Court said:] But we are 
also of opinion that, even if the contract of a seaman could be 
considered within the letter of the thirteenth amendment, it is not, 
within its spirit, a case of involuntary servitude.  The law is 
perfectly well settled that the first 10 amendments to the constitution, 
commonly known as the "Bill of Rights," were not intended to lay down 
any novel principles of government, but simply to embody certain 
guaranties and immunities which we had inherited from our English 
ancestors, and which had, from time immemorial, been subject to certain 
well-recognized exceptions, arising from the necessities of the case.  
In incorporating these principles into the fundamental law, there was no 
intention of disregarding the exceptions, which continued to be 
recognized as if they had been formally expressed.

             Thus, the freedom of speech and of the press (article 1) 
does not permit the publication of libels, blasphemous or indecent 
articles, or other publications injurious to public morals or private 
reputation; the right of the people to keep and bear arms (article 2) is 
not infringed by laws prohibiting the carrying of concealed weapons; the 
provision that no person shall be twice put in jeopardy (article 5) does 
not prevent a second trial, if upon the first trial the jury failed to 
agree, or if the verdict was set aside upon the defendant's motion; nor 
does the provision of the same article that no one shall be a witness 
against himself impair his obligation to testify, if a prosecution 
against him be barred by the lapse of time, a pardon, or by statutory 
enactment. . . .  It is clear . . . that the [Thirteenth] amendment was 
not intended to introduce any novel doctrine with respect to certain 
descriptions of service which have always been treated as exceptional, 
such as military and naval enlistments, or to disturb the right of 
parents and guardians to the custody of their minor children or wards. . 
. .


       I.              Maxwell v. Dow, 176 U.S. 581, 597 (1900)

             [The Court concluded that the Jury Trial Clause wasn't 
incorporated into the Fourteenth Amendment, and thus didn't bound the 
states.] In Presser v. Illinois, it was held that the Second Amendment 
to the Constitution, in regard to the right of the people to bear arms, 
is a limitation only on the power of Congress and the national 
government, and not of the states.  It was therein said, however, that 
as all citizens capable of bearing arms constitute the reserved military 
force of the national government the states could not prohibit the 
people from keeping and bearing arms, so as to deprive the United States 
of their rightful resource for maintaining the public security, and 
disable the people from performing their duty to the general government.


       J.              Trono v. United States, 199 U.S. 521, 528 (1905)

             [The question was whether an action of the Supreme Court 
of the Philippines -- then a U.S. possession -- violated an act of 
Congress applying most of the Bill of Rights to the Philippines.] The 
whole language [of the Act] is substantially taken from the Bill of 
Rights set forth in the amendments to the Constitution of the United 
States, omitting the provisions in regard to the right of trial by jury 
and the right of the people to bear arms, and containing the prohibition 
of the 13th Amendment, and also prohibiting the passage of bills of 
attainder and ex post facto laws.

             [Almost identical language can be found in Kepner v. 
United States, 195 U.S. 100, 123-24 (1904).]


       K.              Twining v. New Jersey, 211 U.S. 78, 98 (1908)

             [The Court concluded that the privilege against 
self-incrimination wasn't incorporated into the Fourteenth Amendment, 
and thus didn't bound the states.] [T]he question [of incorporation] is 
no longer open in this court.  The right of trial by jury in civil 
cases, guaranteed by the 7th Amendment, and the right to bear arms, 
guaranteed by the 2d Amendment [citing Presser v. Illinois], have been 
distinctly held not to be [incorporated].


       L.              United States v. Schwimmer, 279 U.S. 644, 650 (1929)

             [Schwimmer was denied citizenship because she refused to 
swear to "if necessary, . . . take up arms in defense of this country."  
In the process of upholding the denial of citizenship, the Court argued 
as follows:]

             The common defense was one of the purposes for which the 
people ordained and established the Constitution.  It empowers Congress 
to provide for such defense, to declare war, to raise and support 
armies, to maintain a navy, to make rules for the government and 
regulation of the land and naval forces, to provide for organizing, 
arming, and disciplining the militia, and for calling it forth to 
execute the laws of the Union, suppress insurrections and repel 
invasions; it makes the President commander in chief of the army and 
navy and of the militia of the several states when called into the 
service of the United States; it declares that, a well-regulated militia 
being necessary to the security of a free state, the right of the people 
to keep and bear arms shall not be infringed. . . .


       M.              Dissent in Adamson v. California, 332 U.S. 46,
       78 (1947) (Black, J., dissenting)

             [The Court reaffirmed that the privilege against 
self-incrimination wasn't incorporated into the Fourteenth Amendment, 
and thus didn't bound the states.] Later, but prior to the Twining case, 
this Court decided that the following were not "privileges or 
immunities" of national citizenship, so as to make them immune against 
state invasion: the Eighth Amendment's prohibition against cruel and 
unusual punishment, In re Kemmler; the Seventh Amendment's guarantee of 
a jury trial in civil cases, Walker v. Sauvinet; the Second Amendment's 
"right of the people to keep and bear arms * * *," Presser v. Illinois; 
the Fifth and Sixth Amendments' requirements for indictment in capital 
or other infamous crimes, and for trial by jury in criminal prosecutions 
. . . .


       N.              Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)
       (Jackson, J., for the majority)

             [The Court was arguing that the Fifth Amendment doesn't 
apply to alien enemies on occupied alien territory.] If the Fifth 
Amendment confers its rights on all the world except Americans engaged 
in defending it, the same must be true of the companion civil-rights 
Amendments, for none of them is limited by its express terms, 
territorially or as to persons.  Such a construction would mean that 
during military occupation irreconcilable enemy elements, guerrilla 
fighters, and "were-wolves" could require the American Judiciary to 
assure them freedoms of speech, press, and assembly as in the First 
Amendment, right to bear arms as in the Second, security against 
"unreasonable" searches and seizures as in the Fourth, as well as rights 
to jury trial as in the Fifth and Sixth Amendments.


       O.              Knapp v. Schweitzer, 357 U.S. 371, 378 n.5
       (1958) (Frankfurter, J., for the majority)

             [The Court reaffirmed that the privilege against 
self-incrimination wasn't incorporated into the Fourteenth Amendment, 
and thus didn't bound the states.] By 1900 the applicability of the Bill 
of Rights to the States had been rejected in cases involving claims 
based on virtually every provision in the first eight Articles of 
Amendment.  See, e.g., Article I: Permoli v. First Municipality No. 1 
(free exercise of religion); United States v. Cruikshank (right to 
assemble and petition the Government); Article II: United States v. 
Cruikshank (right to keep and bear arms); Article IV: . . . .


       P.              Konigsberg v. State Bar, 366 U.S. 36, 49 & n.10
       (1961)  (Harlan, J., for the majority)

             [This was a Free Speech Clause case; the majority was 
arguing for a narrower interpretation of the Clause than was the 
dissent.] At the outset we reject the view that freedom of speech and 
association, as protected by the First and Fourteenth Amendment, are 
"absolutes," not only in the undoubted sense that where the 
constitutional protection exists it must prevail, but also in the sense 
that the scope of that protection must be gathered solely from a literal 
reading of the First Amendment. [fn10]

             [fn10] That view, which of course cannot be reconciled 
with the law relating to libel, slander, . . . and the like, is said to 
be compelled by the fact that the commands of the First Amendment are 
stated in unqualified terms:  [quoting the First Amendment].  But as Mr. 
Justice Holmes once said:  "[T]he provisions of the Constitution are not 
mathematical formulas having their essence in their form; they are 
organic living institutions transplanted from English soil.  Their 
significance is vital not formal; it is to be gathered not simply by 
taking the words and a dictionary, but by considering their origin and 
the line of their growth."  Gompers v. United States, 233 U.S. 604.  In 
this connection also compare the equally unqualified command of the 
Second Amendment: "the right of the people to keep and bear Arms shall 
not be infringed."  And see United States v. Miller, 307 U.S. 174.

             [See also Justice Harlan's roughly contemporaneous opinion 
in Poe v. Ullman, quoted below in item 19, which seems to treat the 
right as an individual one.]


       Q.              Dissent in Adams v. Williams, 407 U.S. 143,
       149-51 (1972) (Douglas, J., dissenting, joined by Marshall, J.)

             [This was a Fourth Amendment case, not a Second Amendment 
one.  Douglas wrote:] My views have been stated in substance by Judge 
Friendly dissenting in the Court of Appeals.  Connecticut allows its 
citizens to carry weapons, concealed or otherwise, at will, provided 
they have a permit.  Connecticut law gives its police no authority to 
frisk a person for a permit.  Yet the arrest was for illegal possession 
of a gun.  The only basis for that arrest was the informer's tip on the 
narcotics.  Can it be said that a man in possession of narcotics will 
not have a permit for his gun?  Is that why the arrest for possession of 
a gun in the free-and-easy State of Connecticut becomes constitutional?

             The police problem is an acute one not because of the 
Fourth Amendment, but because of the ease with which anyone can acquire 
a pistol.  A powerful lobby dins into the ears of our citizenry that 
these gun purchases are constitutional rights protected by the Second 
Amendment, which reads, "A well regulated Militia, being necessary to 
the security of a free State, the right of the people to keep and bear 
Arms, shall not be infringed."

             There is under our decisions no reason why stiff state 
laws governing the purchase and possession of pistols may not be 
enacted.  There is no reason why pistols may not be barred from anyone 
with a police record.  There is no reason why a State may not require a 
purchaser of a pistol to pass a psychiatric test.  There is no reason 
why all pistols should not be barred to everyone except the police.

             The leading case is United States v. Miller, upholding a 
federal law making criminal the shipment in interstate commerce of a 
sawed-off shotgun.  The law was upheld, there being no evidence that a 
sawed-off shotgun had "some reasonable relationship to the preservation 
or efficiency of a well regulated militia."  The Second Amendment, it 
was held, "must be interpreted and applied" with the view of maintaining 
a "militia." "The Militia which the States were expected to maintain and 
train is set in contrast with Troops which they were forbidden to keep 
without the consent of Congress.  The sentiment of the time strongly 
disfavored standing armies; the common view was that adequate defense of 
country and laws could be secured through the Militia -- civilians 
primarily, soldiers on occasion."

             Critics say that proposals like this water down the Second 
Amendment.  Our decisions belie that argument, for the Second Amendment, 
as noted, was designed to keep alive the militia.  But if watering-down 
is the mood of the day, I would prefer to water down the Second rather 
than the Fourth Amendment. . . .


       R.              Lewis v. United States, 445 U.S. 55, 65 (1980)

             [Lewis was convicted of being a felon in possession of a 
firearm, and challenged the conviction on various statutory grounds, on 
the ground that his prior felony conviction was uncounseled and 
therefore shouldn't be considered, and on constitutional grounds.  The 
Court held:]

             The firearm regulatory scheme at issue here is consonant 
with the concept of equal protection embodied in the Due Process Clause 
of the Fifth Amendment if there is "some `rational basis' for the 
statutory distinctions made . . . or . . .  they `have some relevance to 
the purpose for which the classification is made." [fn1]

             Section 1202(a)(1) clearly meets that test. . . .

             [fn1] These legislative restrictions on the use of 
firearms are neither based upon constitutionally suspect criteria, nor 
do they trench upon any constitutionally protected liberties.  See 
United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 
1206 (1939) (the Second Amendment guarantees no right to keep and bear a 
firearm that does not have "some reasonable relationship to the 
preservation or efficiency of a well regulated militia"); United States 
v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 
1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 
1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 
1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (the latter three cases 
holding, respectively, that § 1202(a)(1), § 922(g), and § 922(a)(6) do 
not violate the Second Amendment).


       S.              United States v. Verdugo- Urquidez, 494 U.S.
       259, 265 (1990)

             [The question here was whether the Fourth Amendment 
protected foreign citizens on foreign soil from unreasonable searches.]

             For purposes of this case, therefore, if there were a 
constitutional violation, it occurred solely in Mexico. . . .  The 
Fourth Amendment . . . text, by contrast with the Fifth and Sixth 
Amendments, extends its reach only to "the people."

             Contrary to the suggestion of amici curiae that the 
Framers used this phrase "simply to avoid [an] awkward rhetorical 
redundancy," "the people" seems to have been a term of art employed in 
select parts of the Constitution.  The Preamble declares that the 
Constitution is ordained and established by "the People of the United 
States."  The Second Amendment protects "the right of the people to keep 
and bear Arms," and the Ninth and Tenth Amendments provide that certain 
rights and powers are retained by and reserved to "the people."  See 
also U.S. Const., Amdt. 1 ("Congress shall make no law ... abridging ... 
the right of the people peaceably to assemble") (emphasis added); Art. 
I, § 2, cl. 1 ("The House of Representatives shall be composed of 
Members chosen every second Year by the People of the several States").

             While this textual exegesis is by no means conclusive, it 
suggests that "the people" protected by the Fourth Amendment, and by the 
First and Second Amendments, and to whom rights and powers are reserved 
in the Ninth and Tenth Amendments, refers to a class of persons who are 
part of a national community or who have otherwise developed sufficient 
connection with this country to be considered part of that community.


       T.              Casey v. Planned Parenthood, 505 U.S. 833, 848
       (1992) (dictum)

             Neither the Bill of Rights nor the specific practices of 
States at the time of the adoption of the Fourteenth Amendment marks the 
outer limits of the substantive sphere of liberty which the Fourteenth 
Amendment protects.  See U.S. Const., Amdt. 9.  As the second Justice 
Harlan recognized:  "[T]he full scope of the liberty guaranteed by the 
Due Process Clause cannot be found in or limited by the precise terms of 
the specific guarantees elsewhere provided in the Constitution.  This 
`liberty´ is not a series of isolated points pricked out in terms of the 
taking of property; the freedom of speech, press, and religion; the 
right to keep and bear arms; the freedom from unreasonable searches and 
seizures; and so on.  It is a rational continuum which, broadly 
speaking, includes a freedom from all substantial arbitrary impositions 
and purposeless restraints, . . . and which also recognizes, what a 
reasonable and sensitive judgment must, that certain interests require 
particularly careful scrutiny of the state needs asserted to justify 
their abridgment."  Poe v. Ullman, [367 U.S. 497, 543 (1961)] (opinion 
dissenting from dismissal on jurisdictional grounds).

             [The Harlan quote is also quoted by the plurality in Moore 
v. City of East Cleveland, 431 U.S. 494, 502 (1977); by Justice 
Stevens's dissent in Albright v. Oliver, 510 U.S. 266, 306-07 (1994); 
and by Justice Stewart's concurrence in Roe v. Wade, 410 U.S. 113, 169 
(1973).]


       U.              Concurrence in Printz v. United States, 521 U.S.
       898, 938-939 (1997) (Thomas, J., concurring)

             The Court today properly holds that the Brady Act [a 
federal gun control law] violates the Tenth Amendment in that it compels 
state law enforcement officers to "administer or enforce a federal 
regulatory program." . . .

             The Second Amendment . . . appears to contain an express 
limitation on the government's authority.  That Amendment provides:  
"[a] well regulated Militia, being necessary to the security of a free 
State, the right of the people to keep and bear arms, shall not be 
infringed."  This Court has not had recent occasion to consider the 
nature of the substantive right safeguarded by the Second Amendment. 
[fn1] If, however, the Second Amendment is read to confer a personal 
right to "keep and bear arms," a colorable argument exists that the 
Federal Government's regulatory scheme, at least as it pertains to the 
purely intrastate sale or possession of firearms, runs afoul of that 
Amendment's protections. [fn2] As the parties did not raise this 
argument, however, we need not consider it here.  Perhaps, at some 
future date, this Court will have the opportunity to determine whether 
Justice Story was correct when he wrote that the right to bear arms "has 
justly been considered, as the palladium of the liberties of a republic."

             [fn1] Our most recent treatment of the Second Amendment 
occurred in United States v. Miller, in which we reversed the District 
Court's invalidation of the National Firearms Act, enacted in 1934.  In 
Miller, we determined that the Second Amendment did not guarantee a 
citizen's right to possess a sawed-off shotgun because that weapon had 
not been shown to be "ordinary military equipment" that could 
"contribute to the common defense."  The Court did not, however, attempt 
to define, or otherwise construe, the substantive right protected by the 
Second Amendment.

             [fn2] Marshaling an impressive array of historical 
evidence, a growing body of scholarly commentary indicates that the 
"right to keep and bear arms" is, as the Amendment's text suggests, a 
personal right.  [Citing various books and articles.] Other scholars, 
however, argue that the Second Amendment does not secure a personal 
right to keep or to bear arms.  [Citing various other articles.] 
Although somewhat overlooked in our jurisprudence, the Amendment has 
certainly engendered considerable academic, as well as public, debate.


       V.              Dissent in Muscarello v. United States, 524 U.S.
       125, 143 (1998) (Ginsburg, J., joined by Rehnquist, C.J., and
       Scalia and Souter, JJ.)

             [The question in the case was whether the statutory phrase 
"carries a firearm" is limited to carrying on the person, or also 
includes carrying in a car which the person is accompanying.  The 
dissent said the phrase was limited to carrying on the person.]

             At issue here is not "carries" at large but "carries a 
firearm." . . .  Surely a most familiar meaning is, as the 
Constitution's Second Amendment ("keep and bear Arms") (emphasis added) 
and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . 
. upon the person or in the clothing or in a pocket, for the purpose . . 
. of being armed and ready for offensive or defensive action in a case 
of conflict with another person."


     VII.              Relevant Statutes


       A.              Militia Act of 1792

             Sec. 1.  Be it enacted . . .  That each and every free 
able-bodied white male citizen of the respective states, resident 
therein, who is or shall be of the age of eighteen years, and under the 
age of forty-five years (except as is herein after excepted) shall 
severally and respectively be enrolled in the militia . . . .  That 
every citizen so enrolled and notified, shall, within six months 
thereafter, provide himself with a good musket or firelock, a sufficient 
bayonet and belt, two spare flints, and a knapsack, a pouch with a box 
therein to contain not less than twenty-four cartridges, suited to the 
bore of his musket or firelock, each cartridge to contain a proper 
quantity of powder and ball: or with a good rifle, knapsack, shot-pouch 
and powder-horn, twenty balls suited to the bore of his rifle, and a 
quarter of a pound of powder. . . .

             Sec. 2.  [Exempting the Vice President, federal judicial 
and executive officers, congressmen and congressional officers, 
custom-house officers and clerks, post-officers and postal stage 
drivers, ferrymen on post roads, export inspectors, pilots, merchant 
mariners, and people exempted under the laws of their states.] 23 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#23>


       B.              The currently effective Militia Act

             (a)  The militia of the United States consists of all 
able-bodied males at least 17 years of age and . . . under 45 years of 
age who are, or who have made a declaration of intention to become, 
citizens of the United States and of female citizens of the United 
States who are members of the National Guard.

             (b) The classes of the militia are --

             (1) the organized militia, which consists of the National 
Guard and the Naval Militia; and

             (2) the unorganized militia, which consists of the members 
of the militia who are not members of the National Guard or the Naval 
Militia. 24 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#24>


       C.              The Freedman's Bureau Act (1866)

            Sec. 14.  /And be it furhter enacted,/ That in every State 
or district where the ordinary course of judicial proceedings has been 
interrupted by the rebellion . . . the right to make and enforce 
contracts, to sue, be parties, and give evidence, to inherit, purchase, 
lease, sell, hold, and convey real and personal property, and to have 
full and equal benefit of all laws and proceedings concerning personal 
liberty, personal security, and the acquisition, enjoyment, and 
disposition of estate, real and personal, including the constitutional 
right to bear arms, shall be secured to and enjoyed by all the citizens 
of such State or district without respect to race or color, or previous 
condition of slavery. 25 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#25>


       D.              The Firearms Owners' Protection Act (1986)

            Sec. 1(b). The Congress finds that -- (1) the rights of 
citizens (A) to keep and bear arms under the second amendment to the 
United States Constitution; (B) to security against illegal and 
unreasonable searches and seizures under the fourth amendment; (C) 
against uncompensated taking of property, double jeopardy, and assurance 
of due process of law under the fifth amendment; and (D) against 
unconstitutional exercise of authority under the ninth and tenth 
amendments; require additional legislation to correct existing firearms 
statutes and enforcement policies. 26 
<http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#26>


     VIII.              Other Materials (included chiefly to provide
     citations for sources mentioned in various op-eds that cite this page)

             Sen. John F. Kennedy's statement, /Know Your Lawmakers/, 
Guns, April 1960, p. 4 (1960):  "By calling attention to 'a well 
regulated militia,' the 'security' of the nation, and the right of each 
citizen 'to keep and bear arms,' our founding fathers recognized the 
essentially civilian nature of our economy.  Although it is extremely 
unlikely that the fears of governmental tyranny which gave rise to the 
Second Amendment will ever be a major danger to our nation, the 
Amendment still remains an important declaration of our basic 
civilian-military relationships, in which every citizen must be ready to 
participate in the defense of his country.  For that reason I believe 
the Second Amendment will always be important."

             Sen. Hubert Humphrey's statement, /Know Your Lawmakers/, 
Guns, Feb. 1960, p. 4 (1960):  "Certainly one of the chief guarantees of 
freedom under any government, no matter how popular and respected, is 
the right of citizens to keep and bear arms.  This is not to say that 
firearms should not be very carefully used and that definite safety 
rules of precaution should not be taught and enforced.  But the right of 
citizens to bear arms is just one more guarantee against arbitrary 
government, one more safeguard against a tyranny which now appears 
remote in America, but which historically has proved to be always possible."

             Summary of Supreme Court references to the two clauses of 
the Second Amendment. 
<http://www.law.ucla.edu/faculty/volokh/beararms/sctref.htm>

            Earliest federal court of appeals cases taking a states' 
rights view of the Second Amendment:  United States v. Tot, 131 F.2d 261 
(3rd Cir. 1942), and Cases v. United States, 131 F.2d 916 (1st Cir. 1942).

            Earliest federal district court cases taking a states' 
rights view of the Second Amendment:  United States v. Adams, 11 F. 
Supp. 216 (S.D. Fla. 1935), and United States v. Tot, 28 F. Supp. 900 
(D.N.J. 1939).

            The federal court of appeals case that takes an individual 
rights view of the Second Amendment:  United States v. Emerson, 
<http://laws.findlaw.com/5th/9910331cr0.html> 270 F.2d 2003 (5th Cir. 2001).

            Laurence Tribe, /American Constitutional Law/ 902 n. 221 
(2000):  "Perhaps the most accurate conclusion one can reach with any 
confidence is that the core meaning of the Second Amendment is a 
populist / republican / federalism one:  Its central object is to arm 
'We the People' so that ordinary citizens can paricipate in the 
collective defense of their community and their state.  But it does so 
not through directly protecting a right on the part of states or other 
collectivities, assertable by them against the federal government, to 
arm the populace as they see fit.  Rather the amendment achieves its 
central purpose by assuring that the federal government may not disarm 
individual citizens without some unusually strong justification 
consistent with the authority of the states to organize their own 
militias.  That assurance in turn is provided through recognizing a 
right (admittedly of uncertain scope) on the part of individuals to 
possess and use firearms in the defense of themselves and their homes -- 
not a right to hunt for game, quite clearly, and certainly not a right 
to employ firearms to commit aggressive acts against other persons -- a 
right that directly limits action by Congress or by the Executive Branch 
and may well, in addition, be among the privileges or immunities of 
United States citizens protected by  1 of the Fourteenth Amendment 
against state or local government action."



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   1 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T1>.    1 
Wm. & Mary sess. 2, ch. 2 (1689).

   2 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T2>.    
Ct. Const. art. I, § 17 (1818).  Connecticut had no Constitution until 
1818.

   3 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T3>.    
Ky. Const. art. XII, § 23 (1792).

   4 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T4>.    
Mass. Const. pt. 1, art. 17 (1780).

   5 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T5>.    
N.C. Const. Bill of Rights, § XVII (1776).

   6 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T6>.    
Penn. Const. Declaration of Rights, cl. XIII (1776).

   7 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T7>.    
Penn. Const. art. IX, § 21 (1790).

   8 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T8>.    
R.I. Const. art. I, § 22 (1842).  Rhode Island had no Constitution until 
1842.

   9 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T9>.    
Tenn. Const. art. XI, § 26 (1796).

   10 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T10>.    
Vt. Const. ch. I, art. 16 (1777).

   11 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T11>.    
Va. Const. art. I, § 13 (1776).

   12 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T12>.    
See The Complete Bill of Rights 181-83 (Neil H. Cogan ed. 1997).

   13 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T13>.    
See generally Eugene Volokh, The Commonplace Second Amendment, 73 NYU L. 
Rev. 793 (1998) (giving more such provisions, and discussing them in 
more detail).

   14 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T14>.    
R.I. Const. art. I, § 20 (1842).

   15 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T15>.    
Mass. Const. pt. I, art. XVI (1780); see also N.H. Const. pt. I, art. 
XXII (1784) ("The Liberty of the Press is essential to the security of 
freedom in a state; it ought, therefore, to be inviolably preserved").

   16 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T16>.    
Mass. Const. pt. I, art. XXI (1780); see also N.H. Const. pt. I, art. 
XXX (1784) (same); Vt. Const. chap. I, art. XVI (1786) (same, but with 
"either house of" omitted).

   17 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T17>.    
N.H. Const. pt. I, art. XVII (1784).

   18 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T18>.    
You may want to remind the students that William Blackstone was the 
leading British legal commentator of the 1700s, and was widely read in 
the Colonies; he was writing about the more limited right found in the 
English Bill of Rights.

   19 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T19>.    
St. George Tucker's Blackstone's Commentaries: With Notes of Reference, 
to the Constitution and Laws, of the Federal Government of the United 
States; and of the Commonwealth of Virginia (1803), contained the 
earliest prominent commentary on the U.S. Constitution.  Tucker taught 
law at the University of William and Mary, and was a Virginia state 
judge.  This material is from p. 143 of book 1 and p. 300 of the Appendix.

   20 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T20>.    
See, e.g., Malcolm, supra note 29, at 122-34.

   21 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T21>.    
U.S. Supreme Court Justice Joseph Story was, of course, the leading 
constitutional commentator of the early 1800s.

   22 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T22>.    
Michigan Supreme Court Justice Thomas Cooley was probably the leading 
constitutional commentator of the late 1800s.

   23 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T23>.    
2nd Cong. sess. I, ch. 33 (1792).

   24 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T24>.    
10 U.S.C. § 311 (enacted 1956, amended 1958).

   25 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T25>.    
39th Cong. sess. I, ch. 200 (1866).

   26 <http://www1.law.ucla.edu/%7Evolokh/2amteach/sources.htm#T26>.    
Pub.L. 99-308, sec. 1(b), quoted at 18 U.S.C. § 921 Historical and 
Statutory Notes.  

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