The Texas Justice Foundation filed an amicus in US v. Lopez (1990) in which the Fifth Circuit and the Supreme Court struck down the Gun Free School Zones Act as an impermissible extention of federal authority under the Commerce Clause. It is not a ruling with which the Potowmack Institute is unsympathetic. The Congress enacts this kind of misguided law because it cannot come up with a national firearms policy that addresses the fundamental issue of the relationship between citizen and state. That relationship is more explicitly at issue in Emerson. See the Potowmack Institute's amicus.
Throughout this brief Halbrook does not hesitate to cite himself as an authoritative source. The Potowmack Institute is disappointed that he did not reference the 1982 Senate Judiciary Committee report as an authoritative source. When Halbrook and the NRA cite this report they don't mention that Halbrook had a hand in writing it.
of the people to keep and bear arms," contrary to the Second Amendment to the U.S. Constitution. The constitutional text consistently uses "right of the people" to refer to individual rights, and uses "power," not "right," to refer to prerogatives of the United States and the respective States.
Halbrook argued for the "armed populace at large" in Perpich. The Supreme Court ignored the point.
While the federal purpose in declaring the right to keep arms is to encourage a well regulated militia, the right is not limited to the militia. By contrast, the Fifth Amendment refers to "the militia, when in actual service." Clearly, the right of the people to keep arms is not limited to "the militia, when in actual service."
There were militias formed of freedmen in the defeated Confederate states that eventually voluntarily disbanded because they did not get adequate support from the state or federal governments against the extralegal terrorist militias that we know as the Ku Klux Klan. The period 1774-76 was a revolutionary situation. Reconstruction was a period of anarchy. Neither is a model for how to run a civil society.
a judicial restraining order without findings has been entered, infringes on this right.
I. THE CONSTITUTIONAL TEXT CONSISTENTLY
USES "THE RIGHT OF THE PEOPLE" TO REFER TO
INDIVIDUAL RIGHTS, AND DESCRIBES STATE
PREROGATIVES AS "POWERS"
Halbrook analyzes words the way the NRA's brief analyzes legal technicalities. The fundamental issue is not of words or legalisms but of political theory. Halbrook mentions the amici in support of the government four times. He must know what they say about him and his volume of gun rights verbiage. He might have taken the opportunity to explain whether or not his "libertarian republicans" are citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. Is there a middle ground that we could call constitutional government located somewhere between his authoritarian absolutism and his "libertarian republicans" who are armed first and consent to be governed second. Those are the fundamental issues we have to get at. We need to know, Does this government have the attribute of sovereignty to defend itself from the NRA's "armed citizen guerrillas" who would outflank it, threaten to outflank it, or fantasize about outflanking it? See Appendix D. Does he think the court is not going to be concerned about these matters?
term "the people." The Fifth Amendment provides in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except. . . in the Militia, when in actual service in time of War or public danger. . . . "(Emphasis added.) Thus, "the right of the people to keep and bear arms" cannot be limited to the exercise of that right only by "the Militia, when in actual service," an argument suggested by those who claim that the Second Amendment protects only the National Guard. Quite simply: the Second Amendment does not refer to "the right of the militia, when in actual service, to keep and bear arms." The Framers used such language elsewhere and did not find it appropriate for the Second Amendment.
power does not contain the individual-rights vocabulary of the Second Amendment. Article I, § 8, Cl. 15 & 16 provide that "Congress shall have power":
"keep troops," but it would be strange to say that a state shall or shall not "bear arms," because a state cannot carry arms, only an individual can. Of course, the Framers could have said that "no state shall keep troops who bear arms unless actually invaded, or in such imminent danger as will not admit of delay." But that strict limitation does not exist in the Second Amendment. "The people" have a right to keep and bear arms on a permanent basis, and are not limited to bearing arms as state troops when the state is "actually invaded, or in such imminent danger as will not admit of delay."
States"). By contrast, the state and federal governments have "powers" only and no "rights." Only individuals have "rights."
PROMPTED ADOPTION OF THE SECOND AMENDMENT
- It is reported that the Governor has said, that he has Three Things in Command from the Ministry, more grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed. 2d. The Province to be governed by Martial Law. And 3d, that a Number of Gentlemen who have exerted themselves in the Cause of their Country, are to be seized and sent to Great-Britain. (Emphasis added.)
-
At the revolution, the British constitution was
again restor’d to its original principles,
declared in the bill of rights; which was
afterwards pass’d into a law,
-
and stands as a bulwark to the natural rights of
subjects. "To vindicate these rights, says Mr.
Blackstone, when actually violated or
attack’d, the subjects of England are entitled
first 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 selfpreservation and defence."
These he calls "auxiliary subordinate rights,
which serve principally as barriers to protect
and maintain inviolate the three great and
primary rights of personal security, personal
liberty and private property": And
that of having arms for their defense he tells
us is "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."
1774,at4.
Amendment was prompted in part by the British policy of confiscating the firearms of
individuals.
The right to have arms for individual and collective defense was recognized in the first state bills of rights. The Pennsylvania Declaration of Rights, Art. XIII (1776) provided: "That the people have a right to bear arms for defense of themselves, and the state... ." The Vermont Constitution, Art. I, § 15 (1777), is identical. While the case at bar is about the right to "keep" arms, this usage shows that the term "bear arms" extends to individual use of arms in self defense and is not limited to militia activity. 4 The North Carolina Declaration of Rights, Art. XVII (1776), provided: "That the People have a Right to bear Arms for the Defense of the State . . . ." The Massachusetts Declaration of Rights, Art. XVII (1780) provided: "The people have a right to keep and bear arms for the common defense." 5 The right of "the people" to "keep" arms clearly includes possession in the home, and this right was considered
fundamental in all the States. See S. Halbrook, A Right to Bear Arms: State and Federal Bills ofRights and Constitutional Guarantees (Westport, Conn.: Greenwood Press, 1989).
SOUGHT TO PROTECT AN INDIVIDUAL RIGHT
TO KEEP ARMS
Halbrook has seen the amici in support of the government where these quotes are given their accurate meaning. He still repeats them for the court without embarrassment.
the Dissent of the Pennsylvania Minority, which proposed: "That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals. . . ." 2 Doc. Hist. 623-24 (Jensen ed., 1976). As this clarifies, the term "bear arms" extended to purposes such as self defense and hunting, and was not limited to militia service. Alexander White, a Federalist, responded:
-
There are other things so clearly out of the
power of Congress, that the bare recital of them
is sufficient, I mean the ". . . the rights of
bearing arms for defence, or for killing game. .
. ." These things seem to have been inserted
among their objections, merely to induce the
ignorant to believe that Congress would have a
power over such objects and to infer from their
being refused a place in the Constitution, their
intention to exercise that power to the
oppression of the people.
8 Doc. Hist. 404 (Kaminski & Saladino eds., 1988). The irony of White’s argument is inescapable in light of the position of the government and its amici in this case that no personal right to keep arms exists and that no limits exist on the power of Congress to prohibit possession of firearms.
Hampshire convention was the first actually to pass a demand for a bill of rights, which included: "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." 1 Elliot, Debates in the Several State Conventions 326 (1836) (hereafter cited as "Elliot").
The right to have anns for personal defense or sport needed no special mention because it was considered beyond the federal power (the reinvention of the interstate conimerce clause in the New Deal was far in the future). Yet the language of the Second Amendment clearly protects the right for such purposes.
Page 17
outlined a speech proposing the bill of rights, explaining: "They [the proposed amendments] relate first to private rights— fallacy on both sides— espec[iall]y as to English Decl[aratio]n. of Rights— i. mere act of parl[iamen]t. 2. no freedom of press. . . — arms to protest[an]ts." 12 Madison Papers 193-94 (Rutland ed. 1979). The English Declaration provided: "That the Subjects which are Protestants, may have Arms for their Defence suitable to their Condition, and as are allowed by Law." 1 W. & M., Sess. 2, c.2 (1689). Madison’s thought was that possession of arms was a "private (i.e., individual) right" which should extend to the entire people, not just Protestants, and that this right should not be capable of being taken away by a "mere act" of the legislature.
opposed to bearing arms on religious grounds. 6 Senator William Grayson wrote that Madison’s amendments "altogether respected personal liberty." 3 Patrick Henry 391 (1951).
Halbrook provides one quote. Rowland, Appendix A, provides 300 to the contrary taken from official documents.
Noah Webster, a prominent
federalist, defined "bear" as "to carry" or "to
wear. . . as, to bear a sword, a badge, a name;
to bear arms in a coat." Webster, An American
Dictionary of the English Language (1828).
"To bear arms in a coat" typically meant to
carry a pistol in a coat for self defense.
pervert their power to the injury of their
fellow-citizens, the people are confirmed by the
next article in their right to keep and bear
their private arms." Federal Gazette,
June 18, 1789, at 2.
Madison: "A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all."
Appendix I, page A-113.
The libertarian fantasy does not get any endorsements from Framers of the Constitution.
Madison endorsed Coxe’s
analysis, writing him that ratification of the
amendments "will however be greatly favored by
explanatory strictures of a healing tendency,
and is therefore already indebted to the
co-operation of your pen." 12 Madison
Papers 239-40, 257 (1978). Coxe’s
explanation was widely reprinted without
contradiction.
7
E.g., New York Packet,
June 23, 1789, at 2; Massachusetts
Centinel, July 4, 1789, at 1.
period disputes the assumption that the right to
keep arms was guaranteed for all persons (other
than criminals) and for all lawful purposes.
religiously scrupulqus shall be compelled to
bear arms." 4 Documentary History of the
First Federal Congress 28 (1986). This
switched the positions of the militia
declaration and the arms guarantee, inserted the
common definition of the militia as "composed of
the body of the people," and changed "free
country" to "free state" (which referred to the
body politic, not necessarily to a state
government).
8
on the conscientious objector clause as a ruse
to prevent persons Congress claimed to be
religiously scrupulous from bearing arms in the
militia. Elbridge Gerry stated that "this
declaration of rights . . . is intended to
secure the people against the maladministration
of the Government," but the objector clause
"would give an opportunity to the people in
power to destroy the constitution itself. They
can declare who are those religiously
scrupulous, and prevent them from bearing arms."
1 Annals of Congress 749-50 (1834).
being "necessary to the security of a free
state." The Senate then passed its final version,
id. at 77, to which the House assented, and this
version would be ratified by the States and
become the Second Amendment.
people," it remains a closely-guarded secret. No
known writing from that period asserts such a
proposition.
ed. 1891). Story also wrote: "One of the
ordinary modes, by which tyrants accomplish
their purpose without resistance is, by
disarming the people, and making it an offense
to keep arms. . . ." J. Story, A Familiar
Exposition of the Constitution of the United
States 264 (1893). Unlike amici here,
Justice Story obviously believed that the Second
Amendment prohibited "disarming the people," not
just the state militia, and prohibited "making
it an offense to keep arms."
terrorism with arms. On this era, see S.
Halbrook, Freedmen, the Fourteenth Amendment,
and the Right to Bear Arms, supra. For
examples of resistance to Klar attacks, see
id. at 126-28.
STEPHEN P. HALBROOK
NOTES
1. Halbrook, Freedmen, the Fourteenth
Amendment, and the Right to Bear Arms,
1866-1876 (Westport, Conn.: Praeger
Publishers, 1998); That Every Man Be Armed:
The Evolution of a Constitutional Right
(Albuquerque: University of New Mexico Press,
1984, reprinted Oakland, Ca.: Independent
Institute, 1994); A Right to Bear Arms: State
and Federal Bills of Rights and
Constitutional Guarantees (Westport, Conn.:
Greenwood Press, 1989).
text@note1
2. See Art. I, § 1 ("all legislative
Powers herein granted shall be vested in a
Congress of the United States"); Art. I, § 3
("the Senate shall have the sole Power to try
all Impeachments"); Art. II, § 2 (the
President "shall have Power" to grant pardons,
to make treaties, and to fill up vacancies).
text@note2
3. Madison’s original proposals for a bill of
rights included provisions other than the Second
Amendment with explanatory clauses. It declared
that a free press, "as one of the great bulwarks
of liberty," must be inviolable, and that "the
trial by jury as one of the best securities to
the rights of the people, ought to remain
inviolate." 4 Documentary History of the
First Federal Congress 10-11 (1986). Had
they passed in those forms, it would not be
viable to argue that a free press is no longer a
great bulwark of liberty or that jury trial is
no longer one of the best securities of the
rights of the people, and hence the substantive
guarantee no longer exists. Nor is it reasonable
to assert that a well regulated militia is no
longer necessary to a free state’s security, and
hence that the people no longer have a right to
arms.
text@note3
4. Muscarello v. United States, 141
L.Ed.2d 111, 125 (1998) (Ginsberg, J.,
dissenting) notes:
Surely a most familiar meaning [of the term
"carry" a firearm] 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."
text@note4
6. Quakers were opposed to bearing arms for
military purposes or for self defense. J.
Richmond, "Quaker Customs & Beliefs,"
http://www.rootsweb.com/~quakers/quakinfo.htm.
See J. Selsam, The Penn3ylvania
Constitution of 1776 (1936), 207 n. 6
(Quaker disapproved of wearing sword for
protection).
text@note6
7. Coxe would play an instrumental role in the
first four administrations of the early
republic, including as head of federal militia
procurement. See Halbrook & Kopel, "Tench
Coxe and the Right to Keep and Bear Arms,
1787-1823," 7 William & Mary Bill of Rights
Journal, Issue 2, 347 (Feb. 1999).
text@note7
8. Noah Webster defined "free" in part as "not
subject to the arbitrary will of a sovereign or
lord; as a free state, nation or people." The
term "state" means "a political society, or body
politic." "State’ has sometimes more
immediate reference to the government, sometimes
to the people or community." Webster, An
American Dictionary, supra.
text@note8
9. 0n the national prominence of Tucker,
see D. Kopel, "The Second Amendment in
the Nineteenth Century," B.Y.U.L. Rev.,
No. 4, 1359, 1370-79 (1998).
text@note9
>
[TOP]
[NRA v. Reno (July, 2000)]
This is one of Halbrook's favorite quotes. Halbrook really believes this stuff. It has been pointed out many times that to "bear arms in a coat" means to bear them in a coat-of-arms which was an insignia of heraldry, usually conferred by the king, that a knight wore on his shield or tabard. See full quote at
.../noahweb.html. Halbrook must be thinking of what Mae West is reputed to have once said to W. C. Fields: "Are you glad to see me or is that just a pistol in your pocket?" This is how the armed populace fantasy is fabricated. Halbrook did not have to worry that
Judge Garwood in his Emerson obiter dictum would be
concerned not to make a laughing stock out of himself.
And to have them registered under the militia acts so they could be called out to enforce the laws of the Union. Private arms in the eighteenth century were a community resource.
A Bill of rights well secured that we the people
may know how far we may Proceed in Every
Department. Then there will be no Dispute
Between the people and rulers in that may be
secured the right to keep arms for Common and
Extraordinary Occasions such as to secure
ourselves against the wild Beast and also to
amuse us by fowling and for our Defence against
a Common Enemy. You know to learn the Use of
arms is all that can Save us from a foreign foe
that may attempt to subdue us, for if we keep up
the Use of arms and become well acquainted with
them, we Shall always be able to look them in
the face that arise up against us.
Creating the Bill of Rights 260-6 1 (H.
Veit ed. 1991). No surviving writing of the
Attorney for Ainicus Curiae Texas Justice
Foundation
5. Without citing a single reference to the
framing of this provision or the British
violations that prompted its passage,
Commonwealth v. Davis, 343 N.E.2d 847,
848-49 (Mass. 1976) held that, under the older
militia laws, "a law forbidding the keeping by
individuals of arms that were used in the
militia service" might have violated this
provision, but such a law would no longer
violate the guarantee because the militia "is
now equipped and supported by public funds."
This does not square with the constitutional
"right" of "the people," without any reference
to the militia, to "keep" arms.
text@note5
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