I've Been Very Busy

In case you have been wondering why I have had so little to say, it is because I have been hard at work on the law review articles I mentioned recently. I've received a number of helpful suggestions from Professor Volokh, and as a consequence, I have been reading 18th century British statutes (the ones that disarmed the Highlanders, and told them to stop wearing their traditional costume), and digging deeply into antebellum court decisions, then improving both of those articles. It turns out that along with all the antebellum state supreme court decisions about the right to keep and bear arms, there is at least one that I did not know about (found through Westlaw), State v. Schoultz, 25 Mo. 128 (1857):

As to the instruction in regard to the constitution of Missouri, that the people's right to bear arms in defense of themselves cannot be questioned, and that no presumption ought to arise in the minds of the jury from the defendant's going armed with a pistol, it could not possibly aid the jury in their deliberations. This right is known to every jury man in our State, but nevertheless the right to bear does not sanction an unlawful use of arms.

In addition, I found a number of decisions of both the state supreme courts, the Michigan Territorial Supreme Court, and a federal district court decision, that all referenced the right to keep and bear arms. Now, these other decisions were not about the right to keep and bear arms; they only referenced it as an example of individual rights comparable in importance to the rights that were actually the subject of the court cases. But even though a lawyer might dismiss these as obiter dictum, they do establish what judges understood that phrase "bear arms" to mean--and it was not exclusively military in nature.

Herman v. State 8 Ind. 545 (1855) may be considered fairly typical. The question before the Indiana Supreme Court was whether a ban on making alcoholic beverages was constitutional or not—and the Court concluded that such a ban was unconstitutional, as a violation of the rights of property. In articulating the limits of legislative authority, the Court argued that the legislature’s authority to prohibit certain actions was restricted by the state constitution:

It cannot so declare the holding of political meetings and making speeches, the bearing of arms, publishing of newspapers, &c., &c., however injurious to the public the legislature might deem such practices to be; and why? Because the constitution forbids such declaration and punishment, and permits the people to use these practices. So with property: the legislature cannot interfere with it further, at all events, than the constitution permits. In short, the legislature cannot forbid and punish the doing of that which the constitution permits; and cannot take from the citizen that which the constitution says he shall have and enjoy.

In short, the Court held that the bearing of arms was an individual right, just as freedom of speech and freedom of the press were. If “bear arms” referred only to militia duty—something done for and by the authority of the legislature—it is extraordinarily odd that the Court would have included this in a list of individual rights that the legislature did not have the authority to prohibit.