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THE RIGHT TO BEAR ARMS

John R. Berger, JD

AMENDMENT II (1791)

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.

Prior to 2008 the United States Supreme Court had not ruled on whether the Second
Amendment protected from infringement any individual right of the people to keep and bear
arms. The lower federal courts had consistently decided that the Second Amendment protected
from federal infringement only the collective right of the people to keep and bear arms as a
member of the militia and that no individual right to keep and bear arms was protected.
Therefore, a state could reasonably regulate the individual possession and use of arms under the
state’s police power (the right of a state to pass reasonable laws to protect the citizen’s health,
safety, morals and general welfare), subject to any limitations in the state constitution and subject
to the state’s judicial determination as to what is a reasonable regulation. Also, Congress could
reasonably regulate the individual possession and use of arms under the powers given Congress
in the “commerce” and “necessary and proper” clauses in the Constitution. No such reasonable
regulation by federal or state legislation would violate the Second Amendment.

All of this established interpretation of the Second Amendment was changed drastically by
the United States Supreme Court in the cases of District of Columbia v. Heller (2008) and
McDonald v, Chicago (2010). In addition to the collective right to bear arms as a member of the
militia, the court established for the first time that there was also a pre-existing fundamental
individual right to keep and bear arms which existed in 1791 which right was protected from
infringement by the Second (federal action) and Fourteenth (state action) Amendments.

It is very important to realize that, as now interpreted by the United States Supreme Court, the
Second Amendment does not create or grant the people any individual right to keep and bear
arms. Rather than granting a right, it protects the people from having the pre-existing
fundamental right to keep and bear arms taken away by the federal or state government. The
United States Supreme Court in Heller stated “The very text of the Second Amendment
implicitly recognizes the pre-existence of the right and declares only that it shall not be
infringed.”

In contrast, many state constitutions establish such a right rather than protecting a pre-existing
right. As an example, the Indiana Constitution in Article 1, Section 32, states “The people shall
have the right to bear arms, for the defense of themselves and the state.”

The difficult decision is determining what this 1791 pre-existing individual “right of the
people to keep and bear Arms” as set forth in the Second Amendment and “to bear arms, for the
defense of themselves” as set forth in the Indiana and similar Constitutions mean, and what
restrictions on such a right may be imposed. The Heller decision states that such a pre-existing
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right “was not to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.”

What do keep, bear, and arms mean? The Heller and McDonald decisions attempted to
answer this question and delineate some of the parameters of this individual right. Both involved
the constitutionality of laws prohibiting the possession of handguns in the home. The United
States Supreme Court decided in Heller (5-4), with the majority opinion written by Justice
Scalia, that, as a general principal, there were fundamental pre-existing individual rights to
possess and carry weapons in case of confrontation, and to use a firearm for traditionally lawful
purposes, such as self defense in the home. The court ruled that prohibition by the federal or
state government on the possession of handguns in the home for self defense violates (infringes
upon) the right to possess and carry arms protected by the Second Amendment as to federal
action and incorporated in the due process clause of the Fourteenth Amendment as to state
action. These decisions were limited to an examination only of the laws prohibiting possession
of handguns in the home. The constitutionality of some permissible limitations on the
possession of weapons was set forth in the Heller opinion in dicta. The Court stated: “We do
not read the Second Amendment to protect the right of citizens to carry arms for any sort of
confrontation. Like most rights, the right secured by the Second Amendment is not unlimited.
From Blackstone through the 19th-century cases, commentators and courts routinely explained
that the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to
consider the question held that prohibitions on carrying concealed weapons were lawful under
the Second Amendment. Although we do not undertake an exhaustive historical analysis today
of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the commercial sale of arms.” The Court
further stated as to the personal use and possession of firearms “We also recognize another
important limitation on the right to keep and carry arms. The sorts of weapons protected were
those in common use at the time” and carrying of “dangerous and unusual” weapons can be
prohibited. Further, “the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purpose.”

The District of Columbia law banned all handguns in the district and the Chicago law
effectively banned all handguns in Chicago by registration provisions which had the practical
effect of banning most handguns in the city. The Heller and McDonald decisions struck down
the District of Columbia and Chicago laws because such laws would prohibit handguns in the
home for the purpose of self-defense. The court did not decide if the laws banning handguns
outside of the home in the District of Columbia and Chicago were constitutional.

The minority of four in Heller would have upheld the banning of handguns in the home in an
urban society and thought that the major underlying value and purpose of the right to bear arms
set forth in the Second Amendment was to protect the militias. There was fear that the right of
Congress to regulate militias as set forth in Article I would allow Congress to weaken or disband
militias, and therefore the Founders wanted to protect militias. The minority recognized that the
individual right to bear arms for self defense was important in primarily rural America but, in
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light of changing circumstances to an urban society, this right can be limited because of the
greater risk of taking lives. Protecting innocent lives by banning urban handguns does not
disproportionally burden the interest the Second Amendment seeks to protect, “self defense.”
Therefore, according to the minority, the right to possess a handgun is not now a fundamental
right and therefore is not incorporated in the Second Amendment or substantive due process
clause as to either federal or state action.
Those opposed to any regulation of the personal use and possession of weapons often cite The
Federalist Papers, written by James Madison, Alexander Hamilton and John Jay, Numbers 29
and 46, as authority for the unregulated personal right to bear arms. To support this claim, words
and phrases, such as “the advantage of being armed, which the Americans possess over the
people of almost every other nation,” are taken out of context, and a careful reading of the
complete papers easily discloses the error. All references to the right to bear arms in The
Federalist Papers are to the collective right to bear arms as a member of the organized militia.
There is no discussion of a personal right to bear arms. The U. S. Supreme Court in the Heller
and McDonald decisions properly and correctly did not refer to The Federalist Papers as
authority for recognizing a personal right to bear arms.
At the time that the Constitution was being considered by the state conventions, the anti-
federalists were afraid that the Constitution gave excessive power to the federal government and
wanted a Bill of Rights added to the Constitution by amendment. In order to have the
Constitution approved, it was agreed to add such amendments although the exact rights to be
included had not yet been determined. The only reference in The Federalist Papers to any
proposed Bill of Rights was in No. 84 which argued that no such Bill of Rights was needed.
The anti-federalists were afraid that the following powers of Congress provisions in the
proposed Constitution, Article 1, Section 8 cls 15-16:
(15) To provide for calling forth the militia to execute the laws of the union, suppress
insurrections and repel invasions;

(16) 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;

would give Congress the power to disarm the militias and impose rule through a standing army
or select militia. In order to allay such fears and to counteract any such action the Second
Amendment was proposed and later adopted. The first portion of the amendment would protect
the militias and the collective right to bear arms, and allow the militia to traditionally defend
against insurrection and invasion, and also to defend against their own government’s unlikely
tyranny.
The Federalist Papers in No. 29 argues that the anti-federalists have no need to be concerned
about the above Section 8 clauses in the proposed Constitution, and explains favorably the
interrelationship of the militias and the proposed federal government pursuant to the above
Section 8 clauses. In No 29 there is no discussion of the personal right to bear arms.

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The anti-federalists were also afraid that the proposed federal government would have power
to weaken the authority of the states. The Federalist Papers No. 46 argues that the states should
have no fear of the new federal government as the states have the capacity to resist in many ways
any ambitious encroachments of the federal government. Among such means of resisting would
be the state militias “with arms in their hands.” This is the only mention in The Federalist Papers
of any right to bear arms and it was restricted to arms used by the militia and not for personal
use.
In conclusion, the U. S. Supreme Court in Heller and McDonald for the first time decided that
in addition to the collective right to bear arms as a member of the militia, there was also a pre-
existing fundamental individual right to keep and bear arms which existed in 1791, which right
was protected from infringement by the Second (federal action) and Fourteenth (state action)
Amendments.

The U. S. Supreme Court further stated that the Second Amendment (and the Fourteenth
Amendment by incorporation) do not create or grant any rights for a state militia or an individual
to keep and bear arms. Rather than creating or granting rights to an individual, these
amendments protect the people from having their individual personal pre-existing fundamental
rights “to keep and bear arms” which existed in 1791 taken away (infringed) by the federal or
state government.

The difficult decision is determining what this 1791 pre-existing individual “right of the
people to keep and bear Arms” means, and what restrictions on such a right may be imposed.
The Heller decision states that such a pre-existing right “was not to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” The Federalist Papers do not
discuss any such personal rights and the Supreme Court did not refer to them in the opinion.

The U. S. Supreme Court stated that state and federal laws can be constitutionally passed
which place reasonable restrictions on the personal use and possession of weapons, and which
reasonably restrict personal ownership to “the sorts of weapons in common use at the time”.
Also, the carrying of “dangerous and unusual” weapons can be prohibited. What are “the sorts
of weapons in common use at that time”, what are “dangerous and unusual weapons” and what
are reasonable restrictions are of course the difficult decisions that the legislatures will be asked
to determine, the constitutionality of which will be decided ultimately by the state and federal
courts.

Prohibiting the possession and use of automatic and semi-automatic weapons and attachments
which make weapons automatic or semi-automatic, restrictions on type, size and capacity of
bullets and magazines, and strict background checks for the purchase of weapons, bullets and
magazines seem eminently reasonable and constitutional.

Note: Two possible references were not cited or discussed by the U.S. Supreme Court:

1. The 1870s prohibition of all weapons possession in Dodge City (which included Miss Kitty’s
Long Branch Saloon) by U.S. Marshall Matt Dillon.

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2. The 1857 majority opinion of Chief Justice Roger B. Taney in the Dred Scott case wherein he
stated that if persons of the negro race were recognized as citizens it would give them the right
“to keep and carry arms wherever they went.”

John R. Berger is a graduate of Hillsdale College and Harvard Law School. He is a retired Judge
of the Steuben Circuit Court and Professor Emeritus of Tri-State University.

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