Re: "Individual Rights" and "Thou Shall Not"

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Posted by CP on October 08, 1998 at 08:57:53:

In Reply to: "blessing of liberty"...blessings from who and/or what? posted by KatNip on October 04, 1998 at 03:20:47:

After I read this and made a copy, I found it important enough to
forward to you. As you know, I have proclaimed the fact that "Rights need No
Defense" and this article clearly identifies the issue of "Individual Rights"
in competition to State Rights with the Federal government enjoying "Powers"
delegated to them by the States and the People. When I challenged Joel "Bull
Dog" Hansen on the 9th amendment he demonstrated his total lack of
understanding of "individual rights". On this issue alone, Bull Dog is
repugnant to the people. This further caused me to think about "Chuck Horne
For Governor" founder and Chairman of the Southern Nevada "Tenth Amendment
Committee" which subordinates our "Individual Rights" to States Rights in the
pecking order of things ordered. I find the offered slate of candidates
engineered by Dan and Bull Dog narrow minded, opinionated, prejudiced and
mean spirited people who are deluded beyond belief.

The problem, as I see it, is how do we as individuals keep Babylon [our
Government] from abusing our rights. The minute you think that Babylon is
going to protect you or lawyers are able to defend you before any court, you
have already lost your battle. The whole system of Babylon is "negative" in
its approach and actually starts with the "Thou Shall Not" of our religious
tradition. The only "positive" aspect we have is "God's Love" which is
demonstrated by virtues of loving, kindness, caring, and being harmless to
all life. This does not mean that we sit by passively and let Babylon abuse
us or our neighbors. When Babylon enforces its "Will" upon us, it is an
abuse and this frees us to use God's Will, through us, to bring balance to
the maddness that abounds.

Peace ...... from a friend to me

Testimony on the Second Amendment
Before the Subcommittee on the Constitution et al.
of the U.S. Senate Judiciary Committee, Sept. 23, 1998

by Eugene Volokh, UCLA Law School

Dear Mr. Chairman and Members of the Committee:

Eight years ago, I got into an argument with a
nonlawyer acquaintance about the Second Amendment. The
Amendment, this person fervently announced, clearly
protects an individual right. Not so, I argued to him,
thinking him to be something of a blowhard and even a bit
of a kook.

Three years ago, I discovered, to my surprise and
mild chagrin, that this supposed kook was entirely right.
In preparing to teach a law school seminar on firearms
regulation (one of the only about half a dozen such
classes that I know of at U.S. law schools), I found that
the historical evidence -- much of which I set forth
verbatim in the Appendix -- overwhelmingly points to one
and only one conclusion: The Second Amendment does
indeed secure an individual right to keep and bear arms.

1. The Text of the Amendment Refers to an Individual

The Second Amendment, like the First, Fourth, and
Ninth Amendments, refers to a "right of the people," not
a right of the states or a right of the National Guard.
The First Amendment guarantees the people's right to
assemble; the Fourth Amendment protects the people's
right to be free from unreasonable searches and seizures;
the Ninth Amendment refers to the people's unenumerated
rights. These rights are clearly individual -- they
protect "the right of the people" by protecting the right
of each person. This strongly suggests that the
similarly-worded Second Amendment likewise secures an
individual right.
for text of the relevant original sources.)

What about the seemingly odd two-clause
construction, which some commentators have called
"unusual," "special," and "nearly unique"? It turns out
that there's nothing odd about it at all. During the
Framing Era, dozens of individual rights provisions in
state constitutions were structured the same way,
providing a justification clause explaining the right,
and then an operative clause securing the right. The
1842 Rhode Island Constitution's Free Press Clause, for
instance, reads

The liberty of the press being essential to
the security of freedom in a state, any person
may publish his sentiments of any subject,
being responsible for the abuse of that
liberty . . . .

Just as with the Second Amendment, the second clause
secures a right, while the first justifies it to the

And the two clauses of the Amendment are entirely
consistent. The second clause guarantees a "right of the
people," which is the right of each individual. The
first clause explains that this right helps further a
"well-regulated militia," a legal term of art that means
"the body of the people capable of bearing arms" (here I
quote from the New York Ratifying Convention's proposal
that eventually became the Second Amendment) -- the
entire armed citizenry, not some small National Guard-
type unit.

The current Militia Act, enacted in 1956 and derived
from the original 1792 Militia Act, defines the "militia"
as including all able-bodied male citizens from 17 to 45;
given the Court's sex equality jurisprudence, I feel
comfortable saying that every able-bodied citizen from
age 17 to 45, male or female, is a member of the militia.
This is quite consistent with the second clause's
securing an individual right to every person.

2. Contemporaneous Constitutions and Commentaries
Unanimously Treat the Right as an Individual Right

Contemporaneous evidence from the late 1700s and
1800s unanimously supports the individual rights reading
of the text. It's widely agreed that the Second
Amendment right to keep and bear arms was an expanded
version of a similar right in the 1688 English Bill of
Rights. England, of course, didn't have states, so the
English right couldn't have been a states' right; Sir
William Blackstone, whose 1765 Commentaries were
tremendously influential in Revolutionary Era America,
described the right as a "right of the subject," an
obviously individual rights characterization.

Many early state Bills of Rights also protected the
right to keep and bear arms; since these rights were
protections *against* state governments, they surely must
have protected individuals, not the states themselves.
And many of the constitutions made this quite explicit.
The 1790 Pennsylvania and the 1792 Kentucky Constitutions
described the right as "the right of the citizens"; the
1796 Tennessee Constitution spoke of "the right of the
freemen"; the 1817 Mississippi, 1818 Connecticut, 1819
Maine, and 1819 Alabama Constitution specifically
referred to the right of "every citizen."

The 1776 Pennsylvania, 1777 Vermont, 1802 Ohio, 1816
Indiana, and 1820 Missouri Constitutions spoke of "the
people['s] right to bear arms for the defence of
themselves," referring to the people individually
("themselves") rather than collectively ("itself").
Throughout the 1800s, these unambiguously individual
rights were seen as directly analogous to the Second

The same goes for all the notable constitutional
commentators of the 1800s. St. George Tucker (1803)
treated the Second Amendment right as equivalent to
Blackstone's "right of the subject"; William Rawle (1829)
did likewise. Justice Joseph Story (1833 and 1840)
called it a "right of the citizens." Thomas Cooley (1880
and 1898) took exactly the same individual right view; so
did the 1866 Freedmen's Bureau Act, which specifically
secured to "all the citizens" "the constitutional right
to bear arms" as part of their "personal liberty." A
recent exhaustive study reveals that there was exactly
*one* statement in the 1800s cases or commentaries
supporting the collective rights view, a concurring
opinion in an 1842 Arkansas state court case.
and following.)

These commentators also make clear exactly what
purpose the right was thought to serve: Blackstone,
Tucker, Story, and Cooley unanimously agree that private
firearms ownership was meant as a deterrent to government
tyranny. In the words of Justice Story,

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.

A chilling thought, perhaps, and one that may not be in
keeping with the temper of our times -- but the Framers
thought that leaving governments (state or federal) with
a monopoly on armed power was even a more chilling
prospect. Though the Second Amendment grants no right to
revolt with impunity against tyranny (no constitution can
do that), it does secure private ownership of firearms as
a deterrent to such tyranny; this is the unanimous
judgment of all the early sources. /*/

3. The U.S. Supreme Court Cases Do Not Treat the Right
as a Collective Right

The U.S. Supreme Court has said little about the
Second Amendment, but it has certainly not said that the
Amendment secures only a collective right.

Throughout the Court's history, the Justices have
mentioned the Second Amendment, usually in passing, in 27
opinions. In 22 of these 27, the Justices quoted or
paraphrased only "the right of the people to keep and
bear arms" language, without even mentioning the Militia

One of the remaining five cases -- and the only
extended 20th-century discussion of the right -- is
United States v. Miller (1939), which held that the right
extended only to weapons that were rationally related to
the preservation of the militia. But the Court
emphatically did not hold that the right belonged only to
the state or the National Guard. Rather, it reaffirmed
that the "militia" referred to the entire armed
citizenry, and considered on the merits a lawsuit that
was brought by an individual (Miller), not by a state.

The only Supreme Court case that leans in the
collective rights direction is Lewis v. United States
(1980), which summarily rejected an ex-felon's claim of
a right to possess a firearm, in passing citing some
lower court cases that took a collective rights view.
But Lewis could equally well be explained as concluding
only that *ex-felons* don't have a right to keep and bear
arms (something that's also been held in the many states
whose constitutions unambiguously guarantee an individual
right to keep and bear arms).

In any event, if one relies on passing mentions,
Casey v. Planned Parenthood (1992) (quoting Justice
Harlan) in passing described liberty as including
"[freedom from] 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" -- a description that treats the
right to keep and bear arms as an individual right on par
with the other individual rights.

Despite all the above evidence, the federal courts
of appeal have unanimously subscribed to the states'
right approach, though there are a few recent hints to
the contrary in some opinions. If the historical or
textual evidence were in equipoise, and if the cases
dealt carefully with the evidence and explained why the
pro-states'-right evidence was more persuasive than the
pro-individual-right evidence, then perhaps we might
defer to these courts' views.

But when the lower courts' decisions are contrary to
the unanimous weight of the evidence, and do not really
confront this evidence but rely almost entirely on bald
assertions or on citations to other lower court
decisions, it seems to me that we must respectfully say
that the lower courts are mistaken.

4. The Precise Scope of the Right Is a Matter of
Considerable Debate

While the evidence that the right is an individual
right is extremely strong, the precise scope of the right
is a matter of considerable debate. This of course is
true of all individual rights: Everyone agrees that the
First Amendment, the Fourth Amendment, and other
provisions secure individual rights, but reasonable minds
differ on exactly what speech the First Amendment
protects and exactly what searches the Fourth Amendment

Thus, recognizing that the Second Amendment secures
an individual right tells us little about most moderate
gun controls, for instance background checks, waiting
periods, or modest restrictions on the kinds of brands
that may be marketed. I don't know how these laws should
be treated; I suspect that many would be upheld, like
many modest speech restrictions are upheld despite the
existence of the First Amendment.

But our concern about these problems can't blind us
to the clear verdict of the constitutional text and the
constitutional history: The Framers of the Bill of
Rights (and of the Fourteenth Amendment) saw the right to
keep and bear arms as an individual right, entitled to
the same sort of dignity and protection as the freedom of
speech, the privacy of the home, the right to trial by
jury, and our other constitutionally secured protections.

As the Court said when defending another often
unpopular right -- the privilege against self-
incrimination --

If it be thought that [a right] is outmoded in
the conditions of this modern age, then the
thing to do is to take it out of the
Constitution [by constitutional amendment],
not to whittle it down by the subtle
encroachments of judicial opinion.

Constitutional rights may be respected, repealed, or
modified; but they must never be ignored.

* * *

/*/ All the text above is part of the written
testimony, except for the last paragraph of Part 2, which
was added for this mailing. At the hearing, the material
in this paragraph was substantially covered by the
witnesses and by some of the Senators on the panel. The
footnotes from the testimony are omitted in this version,
but can be found at

Eugene Volokh is your loyal editor; you can find
links to his Second Amendment-related articles at
As you might have gathered, he has collected a large set
of original sources on the Second Amendment, mostly at

For the opposite view of the Second Amendment, see
Handgun Control, Inc.'s Web site, especially

For a library of law review articles related to the
Second Amendment, see


CENTER-RIGHT is edited by Eugene Volokh, who teaches
constitutional law and copyright law at UCLA Law School
(, and organized
with the help of Terry Wynn and the Federalist Society.

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