Very Nice Ego Stroke

Very Nice Ego Stroke

I did a search for my name through all the briefs filed in the McDonald v. Chicago suit, over at the website that Alan Gura has for it. There were more than a dozen briefs that cited my work--and not just briefs on our side. Even the other side was citing my work! I suppose that I better go back and see if they are accurately citing it.

Law: The Incredibly Inexact Science

Law: The Incredibly Inexact Science

I'm writing a law review article concerning the standards of review used by state courts with respect to the right to keep and bear arms at the moment. I'm just astonished, as I go back through the stack of decisions that I used for my book For the Defense of Themselves and the State how really astonishingly careless many of these decisions were--from the 19th century, and from the 20th century. It's even worse when you start to look up the precedents that they cite--with no apparent awareness that they are often citing contradictory precedents to prove their point. It isn't at all unusual to find cases that cite one set of decisions to prove that there is no right to concealed carry, and another set of decisions to prove that their is no right to open carry--with no awareness that the "no right to concealed carry" decisions often directly say that concealed carry can be prohibited only if open carry is allowed (or vice versa).

The standard of review aspects are even uglier. A lot of the decisions (especially in the 19th century, but even in the 20th century) do consider the right to keep and bear arms an absolute right--one that cannot be denied in public places. Other decisions use various "balancing of interests" approaches, whereby if some legitimate public purpose is in conflict, such as public safety, then the right can be regulated. But it is astonishing how sloppy many of these decisions are about this. How important does the public interest have to be? I can understand arguments for a variety of approaches, but many of these decisions can't seem to ever quite express what that standard is.

Some argue that the regulation must be "reasonable" without ever giving an example of unreasonable. Some argue that the right can be regulated, but not abolished. My favorite are the decisions of the Tennessee and Arkansas Supreme Courts, which both ruled that the legislature couldn't prohibit carrying pistols--but could require them to be always carried in the hand, at all times. Talk about the most dangerous possible mode of carry!

PajamasMedia Publishes Another!

PajamasMedia Publishes Another!

"Armed and Female"

San Francisco Just Doesn't Change, Does It?

San Francisco Just Doesn't Change, Does It?

From George Augustus Sala, My Diary in America in the Midst of War, 2nd ed. (London: Tinsley Brothers, 1865), 2:316:

And, concerning pistols and bowie-knives, I know perfectly well that English travellers have fallen into very absurd errors as regards the American habit of carrying deadly weapons. I know that the warning as to the expediency of either shooting or skedaddling so soon as the adversary with whom you are holding an argument puts his hand in his coat-tail pocket, or begins to scratch his neck in the vicinity of his vest collar, is a bit of fun, and nothing more. There are cowardly ruffians all the world over who will shoot or stab an unarmed person unawares ; but in the settled part of the States such dastardly bravoes are not more plentiful than they are in Europe. Even in San Francisco, the habit of carrying firearms is dying out; and a gentleman, recently arrived from thence, told me that in the course of a year's sojourn he had not fired a pistol in anger half-a-dozen times.

Cert Granted in McDonald v. Chicago

Cert Granted in McDonald v. Chicago

NRA's lawsuit against Chicago, which seeks to get the Second Amendment incorporated against the states, has been granted a writ of certiorari by the Supreme Court. This is a big case, not just because of the Second Amendment, but because it raises the question of whether the Fourteenth Amendment incorporates protections of the Bill of Rights through the privileges or immunities clause ("full incorporation") or through the due process clause (which has led to the intellectually bankrupt selective incorporation principle).

Assuming we win (and I think we have a stronger historical case on this than we did with D.C. v. Heller), the most outrageous state gun control laws are going to be swept away. I think it is even likely that the various assault weapon laws around the country will either be struck down or require substantial liberalization to survive. Discretionary concealed weapon permit laws? Dead. Real dead.

I've been asked to help write the Academics for the Second Amendment amicus brief (of course), and I expect that I will be contributing to others. I'm already hip-deep in writing a couple of law reviews related to this issue already. If you want to help fund Academics for the Second Amendment amicus brief, click over to here and hit the PayPal button in the upper right.

UPDATE: Minor correction: NRA v. Chicago is the case that NRA filed; McDonald v. Chicago is the case filed by Alan Gura. The Court often consolidates several different suits together to resolve an important issue. If you look at Roe v. Wade, you will see that there are at least two different suits, from different states, that were part of that decision.

Upcoming Event in Chicago

Upcoming Event in Chicago

The 2009 "Firearms Law & The Second Amendment Symposium" will be held on Saturday, September 12, at Northwestern University Law School, in Chicago, Illinois. This event will be hosted by The NRA Foundation and the Northwestern University chapter of the Federalist Society.

Capitalizing on recent developments in our nation's federal courts regarding the Second Amendment, panelists will discuss and debate current Second Amendment scholarship and related issues. Featured panelists at this year's event will include scholars on the Second Amendment such as Professors Nelson Lund and Michael O'Shea, and other scholars including Clayton Cramer, David Kopel, and others.

Go here for more details and to attend.

More Stuff Added To The Web Page

More Stuff Added To The Web Page

Added images of State v. Wilburn (Tenn. 1872), Fife v. State (1876), and Wilson v. State (Ark. 1878) and Holland v. State (Ark. 1878) to the right to keep and bear arms decisions page.

For You NRA Members...

For You NRA Members...

The issue of America's First Freedom that just arrived in your mailbox--and might arrive in the next or day--has an article by me about Revolutionary marksmanship.

UPDATE: It's here as a searchable PDF (although a bit large--over 5 MB). I had originally included all the footnotes and other form of a scholarly paper. The editor did a nice job of losing the footnotes and the form, while retaining enough information for you to go find the primary sources--and then using bold to make the primary source material stand out.

UPDATE 2: A reader noticed that one page didn't make it in. Fixed!

Privileges & Immunities: What Did It Mean?

Privileges & Immunities: What Did It Mean?
If you are familiar with the historical question about the meaning of the "privileges and immunities" clause of the Fourteenth Amendment, and whether it incorporates the Second Amendment against the states, you may find this of interest. The "privileges and immunities" clause appears first in the Constitution, Art. IV, sec. 2, where it guaranteed that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." What does that mean? There are a number of arguments about how that was understood, but I found this discussion quite interesting, in an 1838 complaint from black Ohioans about discriminatory laws of that state:

All residents of the state were prohibited, by penal laws, from hiring or employing, in any manner whatever, any person subject to this law, who had failed to comply with its provisions, while the citizens of other states, who had not gained a residence, were exempted from such penalties. Nor were the projectors of this measure satisfied with casting them out beyond the protection of law, and depriving them of the means of obtaining a lawful subsistence: but they made it the duty of the officers of townships to remove them by force out of the state, for disobedience to these laws. By the same process of legislation, every right secured by the constitution may be taken from the citizens of the state. The right of suffrage, the right to bear arms, the right of the people to assemble together and consult for the common good; the right to speak, write, and print upon any subject, might be trammeled with such conditions, as to preclude their free exercise by a large portion of the citizens to whom they are secured. There is no greater security given for the right of suffrage, to those who now enjoy it, by the constitution, than is given to all men of acquiring and protecting property, pursuing happiness and safety, and of enjoying personal liberty. The constitution was formed with a full knowledge that our population was comprised of white and colored persons. The rights and privileges of the one class were as clearly defined and settled, and as sacredly secured, as the other, by that instrument. The discrimination was distinctly made and expressed in unequivocal terms, whenever it was intended to confer any political privilege upon the one, from which the other was to be excluded. But these laws are not only repugnant to the constitution of this state, and to the principles of our free institutions, they are also in direct contravention of the constitution of the United States. That document declares, that 'the citizens of each shall be entitled to all the privileges and immunities of citizens in the several states.' What is the plain and obvious import of this provision? What was the manifest design of its insertion? Can there be any doubt as to its construction or intention? Was it not intended to secure to all the citizens, in each state, the right of ingress and egress to and from them, and the privileges of trade, commerce, and employment in them, of acquiring and holding property, and sustaining and defending life and liberty in any state in the Union? Does it not form one of the conditions of our national compact?[1]

---

[1] “Unconstitutional Laws of Ohio,” The Liberator, April 6, 1838.

Their argument seems to be that "privileges and immunities" meant the protections of the Constitution for individual rights--such as the ones that they list. Hmmm. That's the argument that "full incorporation" advocates make--that the Fourteenth Amendment's "privileges and immunities" clause was supposed to impose the first eight amendments of the Bill of Rights onto the states.

Felonies & Early America

Felonies & Early America
I've run into an interesting historical question: how did America punish ex-felons (those who had served their sentence, and were still breathing) when the Bill of Rights was adopted?

Before the Revolution, there were something like 168 capital crimes in English law. American colonial law somewhat followed English law, and somewhat didn't, varying by colony. I see that New York in 1770 and again in 1771 (after the Crown vetoed the first try) made counterfeiting a capital crime, punishable by "the Pains of Death, without Benefit of Clergy." 5 The Colonial Laws Of New York From The Year 1664 To The Revolution 38, 163. There are two 1772 private relief acts that provide for the same penalty for perjury in relation to bankruptcy cases. Ibid., 421, 424.

Pennsylvania, as another example, from 1718 until 1776, had a pretty impressive stack of capital crimes, including burglary, rape, "the crime against nature," malicious maiming, witchcraft by conjuration, arson, and counterfeiting. O.F. Lewis, The Development Of American Prisons And Prison Customs, 1776-1845 12-13 (Albany, N.Y.: Prison Association of New York, 1892). I know that Penn. was hanging people for burglary in this period--or at least, newspaper accounts are reporting that they are doing so.

By 1786, Pennsylvania repeals capital punishment for burglary, robbery, and buggery (which includes bestiality, oral sex, and anal sex). In 1794, they repeal it for everything except first degree murder. 2 Congressional Globe 456, 19th Cong., 1st sess. (1826). A lot of other states are a lot slower than Pennsylvania on this.

Felony in English law is a very muddled concept. Blackstone's Commentaries, Book 4, ch. 7, makes the argument that the defining characteristic of felony was not that it was capital, but that you were subject to loss of all your lands or goods. Loss of limb or life was a "superadded" penalty, common in English statutory law, but by no means certain for all felonies.

Until the development of prisons (which develop slowly in the early Republic, especially in the South), what happened to violent felons who weren't executed? I'm looking to see what sort of legal disqualifications were imposed on them. I presume that they lacked the right to vote--I recall seeing that Connecticut passed such a measure around 1816. But what about before then--especially in the Constitutionally critical period around adoption of the Bill of Rights? If you didn't get your neck stretched--or you served your sentence in one of the small number of prisons then in existence--what penalties did you suffer on release?

If you can find anything that answers this question, it sure would be helpful for a law review article I am trying to finish and shove out the door.

Academics for the Second Amendment Brief

It is now up. Not being an attorney, I only get a mention on page 1--but at least I get a mention! This was a pretty interesting experience, working with Joe Olson and Dave Hardy on this project.

The Heller Briefs

The Respondent's Brief (which is to say, the one written directly by the attorneys who represent the guy who brought the suit against the District of Columbia for its absurd gun control laws) is now visible here. I provided significant input and comments during the writing of it--as some readers of my book Armed America have already figured out, from some of the historical facts included in the brief.

Dave Hardy at Arms and the Law points to this February 5, 2008 Washington Post article about the brief, and calls it "quite a fair one." I agree. Perhaps liberals are beginning to figure out that they are going to lose. Dave also links here to a variety of law professor blogs discussing the merits of the case. You can hear the desperation in some of the negative comments at those blogs.

The Academics for the Second Amendment amicus brief, which I helped to write, will be visible shortly, as will some other briefs which I contributed inputs to as well.

UPDATE: The NRA's brief is here.

UPDATE 2: And here's another brief that I provided significant input and data for.

The Puckle Gun

I've mentioned in the past the Puckle gun, an early 18th century patent for a repeating firearm something rather like a Gatling gun. I've also written that it was never actually made, because the machining technology didn't yet exist.

To my surprise, I have been pointed to a number of sources that indicate that Puckle actually had a couple of prototypes made, and that they worked. Harold Leslie Peterson's The Treasury of the Gun (1962), p. 205, indicates that 1722 London Journal accounts indicated that one fired 63 rounds in seven minutes in the rain. Okay, that's not a machine gun, but nine rounds a minute is a major technological breakthrough compared to muskets that fired three rounds a minute, and not at all if it was raining. Anthony Smith, Machine Gun: The Story of the Men and the Weapon that Changed the Face of War (St. Martins Press, 2003), 18, tells the same story, and identifies the date of the article in the London Journal as March 31, 1722.

According to Great Britain Patent Office, Patents for Inventions: Abridgements of Specifications (1859), p. 26, Puckle received patent number 418 on May 15, 1717 for his design.

UPDATE: I made reference to a 1722 patent to James Kerr. That was actually the patent number, not the date.

How Obsolete Is The Unorganized Militia?

Less obsolete than you think. I've read that Oregon's governor at the start of World War II, because of the shortage of military units available, asked the state's unorganized militia to patrol beaches, looking for signs of Japanese invasion. I've also read that similar actions took place on the East Coast. But I never had a source that I could cite before. Now I do. Starting at Archives of Maryland, 409:616-18, is a radio address by Maryland Governor Herbert L. O'Conor on March 10, 1942:

The sincere hope of every person in Maryland is that our State may never experience invasion or attack. That we should consider such a thing as possible is in itself a terrible shock to the American state of mind. Nevertheless, with so much of the world overrun by the enemies of Democracy, and with the invasion of Java and New Guinea as well as other points in the Australian Archipelago fresh in our minds, we would be foolish, indeed, not to be prepared, as completely as possible, for any such happening, even here in Maryland.

Our people didn't want this war and, prior to the dastardly and cowardly attack on Pearl Harbor, the thought of sending American troops to fight in faraway lands was abhorrent to the minds of every American. Recent developments of the most threatening nature, however, have completely changed America's attitude toward the present conflict. The unexpected and continuing success of the Japanese forces, who have swept everything before them except General MacArthur's heroic band in the Philippines, have impressed on our minds most forcibly that new tactics are demanded.

...

Only today, for instance, have I been advised by the Commanding General of the First Army, in New York, that the presence and increasing activity of enemy submarines off the Maryland Coast require additional drastic measures.

With the prospect that the regular Army units will be engaged in more important operations elsewhere, and with our State Guard and Military Police assigned to particular functions, it is felt absolutely necessary to have an additional protective force—-as a home guard—-for the protection of our various communities. Competent military officers, one of whom, our capable and experienced Major General Milton A. Reckord, will speak to you in a few minutes, advise that there is need of this further, wide-spread, alert defense organization to cope with and to be available instantly for any sudden attack by parachute troops, by forces landed from the sea by enemy sympathizers within our State.

I propose to meet this need by the organization in every part of the State of a Reserve Militia. The completed plan has just been approved by General Reckord, as Commander of the Third Army Corps. It offers the opportunity for every able-bodied man to assist in protecting his home and his community against enemy activities. The militia will be organized under our State Law, and the men who enlist at this time of our grave emergency will be known as the "Maryland Minute Men."

The mission of the Maryland Minute Men is to furnish immediately, local protection against parachute troops, saboteurs, or organized raiding parties. It is planned that the units be confined to their own communities so that there will be assurance at all times that every residential section of Maryland will have protection.

No prescribed complete uniform will be required. Distinctive arm bands and caps or other items may be furnished by the State, the County, or by the men themselves. For the present the hard-pressed Ordinance Department of the United States Army cannot be expected to furnish sufficient arms, ammunition, or equipment. Hence, the volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are 60,000 licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations, will be expected to constitute a part of this new military organization.

Officers will be drawn from the immediate area in which they are to serve. As Army officers have pointed out to me, the familiarity of the members with their particular locality, with the terrain and road not in the respective communities, will be of great value in resisting any hostile efforts against residental areas and important public necessities.

...

Military officials, in emphasizing the value of such an organization point out that the familiarity which the members will enjoy with the faces, customs and habits of their neighbors in the community, makes them most valuable in combating sabotage efforts. They will detect, even more quickly than a secret service man from the outside, any strange faces in the community, or any unusual activities on the part of local inhabitants.

The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity. [emphasis added]

Some people argue that United 93's passengers and crew are part of the proud tradition of civilian militias, and that the concept isn't dead or obsolete. I agree. As we can see, as recently as World War II--when, to hear some tell the tale, the concept of armed civilians as part of the national defense was obsolete--calling up the unorganized militia was hardly a crackpot idea, and for the same reasons that it wasn't a crackpot idea in 1776.

UPDATE: There was also the Alaska Territorial Guard, somewhat more than 6000 unpaid volunteers (including some women) drawn from the civilian population to protect Alaska from Japanese invasion during World War II. This was created because the Alaska National Guard was going to be deployed outside of Alaska. This October 17, 2007 USA Today article mentions that they were supplied obsolete Army rifles for their mission, unlike the situation in Maryland.

If you can find any other examples of unorganized militia use during (or even after World War II), please let me know.

UPDATE 2: And here's the details of the Oregon State Guard, formed in response to the federalization of the Oregon National Guard from the Oregon State Archives web site:

State guard members were all volunteers and legally could not be called up for federal service or serve outside of the borders of the state. They furnished their own guns, clothing, and personal equipment. Members received regular army training and were subject to army discipline. They trained in a variety of subjects, including first aid, chemical warfare, tactics, and "other soldierly topics." And, they stood ready to respond to orders from the governor, who was the commander in chief. Authorities were expansive in their interpretation of the authority of the governor to order the force to execute any "lawful command." Over time, the state guard assumed control of nearly all National Guard armories around the state. The exceptions were Ashland and Woodburn, which had no state guard units.

How to use the state guard

Generally, officials envisioned the guard to be used "to resist invasion, preserve internal order, or meet grave emergency beyond the capacity of the state and local police forces."(7) Officials described a scenario in which the state guard would be used: "In the event of invasion on the Oregon coast, the State Guard would rush to control all roads leading to the coast, would attack and harass the invaders, delaying the invading activity until such time as fully equipped regular army forces could reach the point and take over."

At that time, guard forces would "retire to serve as snipers and serve as guerrilla-type soldiers concentrating upon the destruction of parachute and air-borne troops. In the event of sabotage, the guardsmen would surround any area threatened or subjected to sabotage." Authorities conceded that "the Oregon State Guard would never win a battle against well-equipped forces of an invading enemy - that would be the lot of the regular army." Still, officials insisted that they would be a "fast striking" force of "immeasurable value" by cutting communication lines, destroying supply depots, and delaying the enemy, thus destroying their morale.

Taming the guerrillas

The Oregon State Guard also encouraged many of the independent local home guard organizations that had popped up around the state to integrate with the state guard. Some of these groups, such as the Tillamook Guerrillas, were large and very zealous. The "Bushwhackers" of southeast Portland were another such group. Comprised of men from 20 to 60 years old, most members were in their late 40s. The group formed in January 1942 and counted 150 volunteers by April. Each Monday they would meet in the basement of the Laurelwood Methodist Church for close-order military drill and to "bang away at a series of targets." Army officials were not excited about the idea of numerous groups such as the Bushwhackers traipsing through the woods with loaded weapons so they asked the state to at least check the reliability of each group's leaders. The Bushwhackers planned to bring their ranks up to 240 men and apply to join the Oregon State Guard as four new companies.(9)

Governor Sprague also worked to bring these local forces into the fold, starting with flattery:

"One thing made clear in this war is the value of guerrilla fighting; and our local fighters, familiar with the terrain, can be of great value in repelling the enemy. They should be enrolled in a military body, however; otherwise they would not be entitled to the rights of prisoners of war, if captured, but would be subjected to immediate execution. They should also be regularized for training and for proper coordination with regular troops."

Where The "Bear Arms" Paper Went

I mentioned a couple of days ago that "What Does Bear Arms Imply?" had been accepted by a law review you might have even heard of, but we were holding the name until we had this nailed down. It is now nailed down. Georgetown Journal of Law & Public Policy will be publishing it.

I Need Your Help With the DC Suit

Fifteen historians, some of them nationally prominent, have filed an amicus curiae brief arguing that the Second Amendment does not protect an individual right. Their names are: Jack N. Rakove, Saul Cornell, David T. Konig, William J. Novak, Lois G. Schwoerer, Fred Anderson, Carol Berkin, Paul Finkelman, R. Don Higginbotham, Stanley N. Katz, Pauline R. Maier, Peter S. Onuf, Robert E. Shalhope, John Shy, Alan Taylor. Their brief makes the claim:

Amici Curiae, listed in the Appendix, are professional historians. They have all earned PhD. degrees in history, hold academic appointments in university departments of history, and specialize in the American Revolution, the Early Republic, American Legal History, American Constitutional History, Anglo-American Legal History, or related areas.

For all their expertise, Rakove, Finkelman, Higginbotham, and Onuf were taken in by one of the grossest frauds in recent American history: Michael Bellesiles' Arming America, which set a new first: the first book to receive the Bancroft Prize--and then have it revoked. Robert F. Worth, "Prize for Book Is Taken Back From Historian", New York Times, December 14, 2002. The publisher, Alfred A. Knopf, subsequently withdrew the book from sale and pulped it (instead of remaindering it). Hillel Italie, Associated Press, “Publisher Stops History Book Publication,” January 7, 2003.

Now, I ordinarily wouldn't see much point to embarrassing these people by pointing out that they were taken in by this tenured conman--after all, many professional historians were. But when you tell the Supreme Court, "Trust us! We're experts on this subject of the Second Amendment and guns in early America," it doesn't say much when it turns out that they were snookered by one of the grossest, most obviously fraudulent history books that I have ever seen--and this is a topic on which they are claiming to be experts! (And a law professor, James Lindgren, and myself, who is nobody, ended up spotting and exposing the fraud.) So here's what you can do: find any published reviews by any of the fifteen historians above of Arming America and send them to me, pronto. Here's what I have so far:

From the dust jacket of Arming America: "We can hardly understand the context for the Second Amendment without first reading Arming America. No one previously has given us such an authoritative account of firearms in our history from the Colonial period through the Civil War." -- Don Higginbotham

From the yellow wraparound band on review copies of Arming America: "Arming America is a myth-busting tour de force. Michael Bellesiles moves to the front rank of American historians with this deeply researched, brilliantly argued, energetically written, and timely book. It is an instant classic, one of the very most important works of historical scholarship published in recent years. In future years it will be impossible to talk about the role of guns in our civic culture without coming to terms with this superb study." Peter S. Onuf

Highly favorable reviews of Arming America by Bogus appeared in Texas Law Review 79, no. 6 (May 2001): 1641-55; by Finkelman in Michigan Law Review 99, no. 6 (May 2001): 1500-19; by Anderson,“Guns, Rights and People,” Los Angeles Times Book Review, 17 September 2000, pp. 1-2.

Jack Rakove has an especially embarrassing part in the Arming America scandal. Bellesiles thanked him: "Jack Rakove kindly went through the second draft with a keen eye and improved every page he read." Michael A. Bellesiles, Arming America: The Origins of a National Gun Culture (New York: Alfred A. Knopf, 2000), 583. When William & Mary Quarterly asked four prominent historians to review the controversy (which historians had ignored, until the concerns of Lindgren and myself received significant popular press attention), Jack Rakove wrote the only one of the four articles reviewing the book that chose not to say anything particularly negative about it, while the other three historians politely observed that it Arming America was severely flawed. Jack N. Rakove, "Words, Deeds and Guns: Arming America and the Second Amendment" [Forum: Historians and Guns], William and Mary Quarterly, 3rd Series, 59, 2002, p. 205-10; Randolph Roth, “Guns, Gun Culture, and Homicide: The Relationship Between Firearms, the Uses of Firearms, and Interpersonal Violence,” William & Mary Quarterly, 3rd ser., 59(1):224-7; Gloria L. Main, “Many Things Forgotten: The Use of Probate Records in Arming America,” William & Mary Quarterly, 3rd ser., 59(1):205-16; Ira D. Gruber, “Of Arms and Men: Arming America and Military History,” William & Mary Quarterly, 3rd ser., 59(1):217-22. Subsequent investigation--after the full extent of the scandal had been widely publicized among non-historians--led to Bellesiles resigning a tenured position at Emory University. Stanley N. Katz, Hanna H. Gray, Laurel Thatcher Ulrich, “Report of the Investigative Committee in the matter of Professor Michael Bellesiles,” July 10, 2002.

So do your part: help me find every review these fifteen historians wrote of Arming America!

UPDATE: Let me clarify that I can't hold Shalhope Constitutional Commentary (1999) paper against him. He operated based on what Bellesiles's 1996 Journal of American History paper claimed. While that paper, like Arming America, turned out to be fraudulent, it wasn't obviously and grossly so.

Did The Second Amendment Return Power To The States?

Did The Second Amendment Return Power To The States?

This is one of the claims that gets made by those who insist that it does not protect an individual right. They claim that it was to provide some protection to the states to maintain state militias. Houston v. Moore (1820) involved a question of federal vs. state control of the militia--and as my friend J. Norman Heath, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation,” 79 U. Det. Mercy L. Rev .39 (2001), demonstrates, there is simply no evidence that anyone at the time recognized that the Second Amendment changed the existing relationships contained in Art. I, sec. 8.

Houston v. Moore (1820) involved a Pennsylvania militiaman who was court-martialed under state law for failure to march when his unit was called into federal service. He challenged the authority of Pennsylvania to punish him for what he characterized as a violation of federal law. Throughout Justice Bushrod Washington’s decision, there are discussions of what power the Constitution grants to the federal government and the States with respect to the militia. Art. I, sec. 8 is repeatedly referenced—but not a word about the Second Amendment’s supposed protection of State authority or control over its militia.[1] It appears that neither side argued that the Second Amendment changed the relationships of Art. I, sec. 8.

Justice Johnson’s concurring opinion also refers to Art. I, sec. 8, and shows that the Second Amendment changed nothing.

The power of Congress over the militia is limited but by two reservations in favour of the States, viz. the right of officering and that of training them.[2]

Justice Story’s dissent is about the question of concurrent authority. He does argue that the Constitution’s grant of authority to Congress over the militia does not preclude authority remaining with the States, unless the laws of each are contradictory.[3] Story does quote the Second Amendment (although he mislabels it the “fifth amendment”), but makes a point of observing that,

The militia of several States may, at the same time, be called out for the public defence; and to suppose each State could have an authority to govern its own militia in such cases, even subordinate to the regulations of Congress, seems utterly inconsistent with that unity of command and action, on which the success of all military operations must essentially depend.[4]

And

It is conceded all on all sides, and is indeed, beyond all reasonable doubt, that all state laws on this subject are subordinate to those constitutionally enacted by Congress, and that if there by any conflict or repugnancy between them, the State laws to that effect are inoperative and void.[5]

Even the Second Amendment, which Story admits “may not, perhaps, be thought to have any important bearing on this point”[6] does not grant the States any more authority over their militias than Art. I, sec. 8.

[1] Houston v. Moore, 18 U.S. 1, 4, 5 (1820). See J. Norman Heath, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation,” 79 U. Det. Mercy L. Rev .39 (2001), http://www.guncite.com/journals/heath.html, last accessed October 31, 2007, which provides a detailed treatment of these issues.

[2] Houston v. Moore, 18 U.S. 1, 36 (1820).

[3] Houston v. Moore, 18 U.S. 1, 48, 49, 50, 51, 52, 53 (1820).

[4] Houston v. Moore, 18 U.S. 1, 53 (1820).

[5] Houston v. Moore, 18 U.S. 1, 56 (1820).

[6] Houston v. Moore, 18 U.S. 1, 52, 53 (1820).

Here's a bit more evidence, and closer in time to the Second Amendment's adoption by Congress. American State Papers: Military Affairs, 1:8, contains George Washington's "Organization of the Militia" "Communicated to the Senate, on the 21st of January, 1790"--or several months after Congress passed the Second Amendment, and sent out to the states for ratification. It clearly establishes that the Second Amendment didn't change the relationships in the original Constitution.

And sixthly, That, agreeably to the constitution, the United States are to provide for organizing, arming, and discipling the militia, and for governing such part of them as many 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.

This is exactly what Art. I, sec. 8 provides, and as is described in Houston v. Moore (1820). If the Second Amendment returned some authority or power to the states over their militias, or in some protected the state militias from federal government interference, no one seems to have told President Washington. This would seem a pretty damning piece of evidence for demolishing DC's claim in the current suit about what the Second Amendment did.

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.

The Meaning of "Bear Arms" and Pistols As Protected Arms

The gun control crowd has insisted for several years that "bear arms" in the Second Amendment, and most of the state constitutional guarantees, refers to the military use of weapons, and not to the private use of arms for self-defense. Professor Joe Olson and I have put together a law review article on the subject demonstrating that this is simply not the case. The documents of the 17th, 18th, and early 19th centuries demonstrate that not only did many English speakers use "bear arms" to refer to civilian uses of arms, but that English statutes did so. Even more importantly, statesmen who played significant roles in the creation of our government used "bear arms" to refer to civilian carrying of weapons. You can download the paper at Social Sciences Research Network. The abstract is here; you can download it here.

Another paper by Joe Olson and I concerns whether pistols are properly understood as protected arms under the Second Amendment. The abstract is here; you can download it here.

Guns in Church

Guns in Church

Just a quick reminder, for those who think there's something bizarre about guns in churches--the law used to require you to bring your gun to church, for the security of those present. This article appeared in America's First Freedom, January, 2003, 36-37. (Their title for the article, not mine.)